frequently asked questions
how do i change my will?
how you change your will depends on what changes you want to make; if they are small changes such as an address or adding in a gift to someone then we can prepare a codicil for you. This sits alongside your existing will and needs to be signed and witnessed in the same way.
If you want to make big changes such as taking someone out or changing the percentages then we would recommend making a new will. This ensures that your wishes are clear and up-to-date and also avoids your previous wishes in your old will becoming public.
what is the difference between an executor and a trustee?
An Executor is the person that you appoint to act in the administration of your estate. Their duties will include collecting in your assets, settling any liabilities, obtaining a grant of probate, paying any taxes due and distributing your estate under the terms of your Will. Although technically it is possible to appoint more, the maximum number of Executors to whom probate will be granted is four. The more Executors that you appoint the more chance of dispute as to the best ways to administer your estate which can create more expense. We would normally therefore advise you to appoint two people who are over 18 (as probate cannot be granted to someone under the age of 18) that you trust and that you know can work together. Even though this is a personal appointment you should bear in mind that your Executors are able to appoint professionals to assist them in the administration of your estate. A beneficiary under your Will can act as an Executor should you wish them to do so. Alternatively frequent appointments include an independent family friend, a business colleague, a professional adviser or a trust corporation.
While it is common for people to appoint the same people to act as Trustees as Executors the roles are distinct and separate from each other. You do not have to appoint the same people to act in both roles if you do not wish to do so but for convenience it is often better to do so and as such it makes sense to make provision for your trustees to be the same people as those who obtain the grant of probate in their name. A trustee will hold any monies to be held in trust until a contingency mentioned in your Will comes to pass such as a child reaching the age of 21 or under the terms of any trust outlined in your Will.
what is jointly owned property?
There are some assets that you will be unable to deal with under the terms of your Will. These would include assets held in trust such as some life policies which are usually dealt with by trustees taking into account any nominated beneficiary form but it would also include assets that you own jointly with another. Examples include your home and other property if it is owned as joint tenants, such as a joint bank account. This is because in law the right of survivorship is deemed to apply and as such the 50% of the first to die will automatically vest in the surviving co-owner no matter what the terms of your Will might be. If this is not what you would want to happen then you can choose to 'sever' your joint tenancy which will leave you free to pass your share of the joint asset to anyone you wish to receive it, under the terms of your Will.
what is a declaration of trust?
Sometimes property can be held jointly but not necessarily in 50:50 shares. In these cases the owners can enter into a binding agreement that the beneficial ownership will not be equal, but will be in different percentages depending on their agreement. The best example of this is a couple who, when buying a property together, have made different contributions to it as is often the case when buying property during the course of a new relationship. The document that formalises what shares the property is to be held in is called a Declaration of Trust. This document sets out how the property is held, for example 60%/40%, but it also makes provision for how to deal with any uplift or drop in the value of the property should it have to be sold. It is therefore a very useful document to protect different levels of contributions or to show where parents have provided funds towards a deposit.
what happens to my will if i get married?
if you have an existing will in place and you get married or enter into a civil partnership this will automatically revoke (cancel) your will unless your will was made in contemplation of that marriage or civil partnership. If your will is revoked and you die without making a new one, your estate will pass under the Intestacy Rules.
what is a deed of variation?
You may have heard friends and relatives who have stood to benefit under the terms of a Will say that they chose to vary the terms of the Will to benefit another person, for example, their children. In essence you can choose to give up some or all of the assets that you were due to inherit. The ability to vary the distribution of assets under a Will can only be achieved within two years of the death of the person who made the Will. Such variations are most often used to help save tax for the person agreeing to have their share of the assets changed but it is important to note only adults of full mental capacity can enter into such an arrangement. It should be said that the same rule applies to those who may have benefitted under the Intestacy Rules, so where someone has died without a Will.
should i appoint guardians in my will?
the appointment of guardians is one of the main reasons parents with minor children should consider making a will. In the event of both parents dying there is a risk that the children could initially be placed into foster care pending determination of who they should live with on a long term basis. By having appointed guardians in your will this will assist in any decision making process relating to where any children should live and will allow your guardians to instigate actions to have the children live with them immediately upon your death.