Your will should be a flexible document, so that if circumstances change through the death of an executor or a beneficiary or the disposal of a particular item of property, it is not necessary to change your will. These problems can be easily avoided by:
- the appointment of more than one executor
- having substitutional beneficiaries
- making general as opposed to specific bequests. e.g. Don’t say; “I leave my house at 52 Dollis Road to my son.” Far better to say; “I leave my main residence at the date of my death to my son.”
A will normally contains the following components:
- name of person making it (“the testator”)
- details of executors
- testamentary guardians if appropriate
- any directions as to your funeral
- specific gifts
- who is to receive your residuary estate (“residuary beneficiaries”)
- substitutional beneficiaries
- trust provisions for minor beneficiaries
- other trust provisions
- signature of testator and witnesses
Executors and testamentary guardians
Your executors are responsible for dealing with your financial affairs after your death. If you have a spouse or partner then normally they will be appointed with other executors to act in substitution.
Specific gifts
Generally this will be individual items such as “all my jewellery” or “a gift of £1,000”. It is better to dispose of large parts of your estate in the gift of residue. It’s important to bear in mind that your personal possessions and assets will change over time. A gift leaving all of your Premium Bonds to a child will fail if you don’t hold any at death.
Residuary estate
This is a ‘sweeping up’ clause whereby any of your estate not specifically disposed of (“the residue”) is dealt with. In most cases testators deal with the bulk of their estate in this manner. Without such a clause you may leave some of your property un-disposed of, this is known as a partial intestacy. If your residuary estate is being divided amongst several people, care needs to be taken to over the drafting of this clause to prevent a partial intestacy arising should one of the beneficiaries die before you.
Substitutional beneficiaries
If your residuary estate is left to a single person then it is a good idea to name a substitute in case the original beneficiary dies before you.
Trust provisions for minors
We take the view that it is a bad idea to allow children to inherit a large amount of money at an early age as they will probably spend it. It is far better to keep a residuary estate, which is passing to children, in trust until they reach 21 or 25. These trusts are normally drawn so funds can be used for the child’s maintenance and schooling and also for the purchase of property but the money cannot be squandered. Where property is left to grandchildren as original or substituted beneficiaries then regard must be had to the conditions which apply to claiming the Residence Nil Rate Band which we discuss below.
Inheritance Tax
All estates on death are subject to Inheritance Tax (‘IHT’). Currently, the first £325,000 worth of assets that you leave is taxed as 0%. This is known as the Nil Rate Band (“NRB”). Assets passing between spouses (and registered Civil Partners) (provided they are both domiciled in the UK) are free of IHT. If you have made any gifts in the 7 years before your death which exceed the sum of £3,000 per annum then you may have used the whole or part of your NRB. On the death of a spouse (or civil partner) the survivor will inherit any unused NRB that the deceased spouse hasn’t used. You can therefore potentially leave assets worth up to £650,000.00 free of IHT. Please note this is the tax position at the time of preparing this guide. The law on IHT is subject to frequent change. You should keep your affairs under frequent review to have regard to any changes in IHT which might affect you.
If you have children or step children then you may also benefit from the Residence Nil Rate Band which is currently £125,000 per person and will increase to £175,000 per person by 2020
Life interest of family home
Creating a life interest trust under your will can help reduce the assets which may go in nursing home fees. They can also ensure that assets ultimately pass to your children. For further details see our guide to Life Interest trusts.
This is general advice and is meant for information purposes only. It should not be relied upon and specific advice should be obtained on any legal problem
Garner & Hancock Solicitors is the trading name of Garner & Hancock Solicitors Limited. Company registration number: 09442598. A list of Directors is available at the registered offices of Garner & Hancock at 4 Church Street, Old Isleworth, Middlesex TW7 6BH. Authorized and regulated by the Solicitors Regulation Authority. Registration number: 628313. Tel: 020 8232 9560.
