Specialist Family Solicitors In Will Writing

There are specified persons who are entitled to challenge a will if they are not named as a beneficiary.  The provision for this comes from the Inheritance (Provision for Family and Dependants) Act 1975.

There is no guaranteed right to receive anything from the will but there is a right to make such a challenge and it is possible a court may agree the person challenging the will should benefit and order that this happens.  It is therefore important that we identify anyone in this specific group of persons and consider providing additional information or explanation as to why they have been excluded so that this can be used if there is a challenge make a successful claim less likely.  The categories of persons entitled to challenge a Will are;

• Spouse/ civil partner or former spouse/ civil partner (so long as they have nor re-married or formed another civil partnership)
• Child or person treated by the deceased as a child of their family
• Cohabitee, if during the whole of the two year period preceding the deceased’s death, they lived in the same household as the deceased and as the husband or wife of the deceased
• Any person who was being wholly or partly maintained by the deceased immediately before their death if the deceased was making a substantial contribution in money, or money’s worth towards the reasonable needs of that person.

If there are people in these categories you do not want to inherit from you but are concerned about a challenge to the will you may want to consider making a small gift to them which is specifically stated in the will to be made on the condition that they do not challenge the will.

Many people also do not appreciate that if they are in the process of divorcing, or are separated but still legally married then dying without a will means your legal spouse will inherit the first £322,000 which may result in them receiving everything you own, or inheriting far more than any children you have together. This is the case even if you are separated and have initiated divorce proceedings.  Dealing with the financial issues arising out of a divorce can take up to a year, sometimes longer and the final order of divorce (what used to be known as Decree Absolute) is usually the final step so people often remain legally married  for a long period after the relationship has broken down.  Making a will as soon as possible is therefore an important consideration if you are separated or in the process of divorcing.

You will need to have executors named in your will.  Executors are persons who are responsible for carrying out the instructions in your will. You should consider whether these persons will have the time and capacity to deal with your affairs and are agreeable to acting as executors.  You should also consider whether it is likely they will outlive you and issues such as are they happy to deal with managing money and with any potential conflict between family members.

If any children are to benefit from your will the executors will also need to hold funds or property on behalf of the children until they reach the age of 18 (or other specified age).  Your executors will then be trustees.  The trustees will have certain ‘powers’ automatically but can be given specific additional powers in your will, for example to pay money only on a child reaching a specified age, to pay the income from any property or investments.  You should consider if your executors/trustees will be able and willing to manage the trust on an ongoing basis as the commitment may be required until children reach 18 or later.  A trust may also be advisable or required if you wish to ensure someone benefits from the trust but do not want them to have ‘control’ over it, i.e for vulnerable persons who cannot manage their financial affairs or persons with addictions for example who may not be prudent with an inheritance.

If you are separated or divorced from the other parent of your children and you share parental responsibility (see note on PR) then that parent would automatically become the person responsible for your children on your death but you can also appoint guardians in your will.  A guardian named in a will could then apply to the court for an order giving them ‘parental responsibility’ for your child so they can make decisions relating to their care and wellbeing.

Your will can appoint guardians for your children who will take responsibility for any children under 18 on your death if you are the last surviving parent.  You may wish to have money held in trust to assist the guardian financially in looking after your children or to make provision in your Will to allow the guardian’s to live in your home to look after the children until the children are independent for example.  You should consider issues such as if the appointed guardian have the space in their own home, how your children would fit in with any children the guardian already has, would it mean the children having to move away from schools and friends, would the guardian be able to manage financially, how well do the children know them, do they have similar beliefs and views on raising children etc.

If you are separated or divorced from the other parent of your children and you share parental responsibility (see Glossary)  then that parent would automatically become the person responsible for your children on your death but you can also appoint guardians in your will.  A guardian named in a will could then apply to the court for an order giving them ‘parental responsibility’ for your child so they can make decisions relating to their care and wellbeing.

If the other parent does not have parental responsibility (because they are not on the child’s birth certificate and you were never married to them) you can appoint a guardian in your will but you should be aware it may mean court intervention if there is another parent and they do not agree the guardian should be caring for your children.

Often couples will want to leave the family home to each other on their death but ultimately want the property to pass to their children.  You can simply leave the house to your partner of course but if you want to make sure there is no possibility of anyone else ultimately inheriting your share, (for example if your partner had more children and wanted them to also benefit, or re-married and did not have a new will drawn up)

To avoid this situation you may wish to create a life interest trust.  A life interest trust is a right to ‘use’, or have some benefit from, an asset but not actually own it. This means you give your spouse or partner, or someone else, the right to live in the house (so the house doesn’t need to be sold to provide beneficiaries of your will with their inheritance) but no ownership of your share of the property so they cannot sell or otherwise dispose of it.  This can be helpful if you want to ensure children from previous relationships benefit but you do not want this to be to the detriment of your current partner, or if you would not want anyone your partner or spouse forms a new relationship with to have any claim on your share of the house.  A life interest trust means you can dictate who ultimately will benefit from your estate but takes account of the current circumstances; allowing your partner to live in the house for life for example.  This gives you peace of mind that your loved ones are protected but ensures the arrangements cannot be changed after your death.

A discretionary trust is a legal arrangement where trustees have broad powers to decide how and when trust assets are distributed among a class of beneficiaries. Essentially, the beneficiaries have no guaranteed right to income or capital; the trustees can choose who benefits, when, and how much.  You might want to set out some ‘guidelines’ for the trustees or suggest ‘conditions’ that you would want any beneficiaries to have met before they can receive any inheritance.

A vulnerable beneficiary trust operates broadly similarly to a discretionary trust, giving the trustees discretion to decide what, if any, benefits should be given to any of the beneficiaries and at what times. However, the tax treatment is significantly different to a discretionary trust and the use of these trusts is limited to situations where the primary beneficiary of the trust is deemed to be “disabled”.

A disabled / vulnerable beneficiary is a person who by reason of mental disorder as defined under the Mental Health Act 1983 is incapable of administering their property or managing their affairs, or a person who is in receipt of social security benefits relating to disability.

There are, in English law, 2 ways to own a property jointly; as ‘joint tenants’ or ‘tenants in common’.

When people in a relationship own a property jointly they usually own it as ‘joint tenants’, your conveyancer should have explained this to you when you purchased the property and asked you how you wish to own it.  If you are joint tenants this means that if one of you were to die then the other automatically becomes the sole owner.  This is the case regardless of the arrangements in your will because a jointly owned property held as joint tenants does not form part of your estate so your share would not pass to beneficiaries in your will.  It may be this is not what you want, you may wish for example to leave your share to your children.

If you do not want the other person to automatically have the entire property should something happen to you then you should own the property as tenants in common.  This means you each own a separate part, it does not define what percentage each of you owns but it is assumed to be 50/50 unless stated otherwise and means that your share will not automatically transfer to the other person if you were to die.

We can establish whether you own your property as joint tenants or tenants in common by checking the Land Registry records. If you are tenants in common there will be a specific ‘caution’ on your title deeds.  If that caution is not present that means you hold the property as joint tenants.  If you do not want your property to pass automatically to the other joint owner upon your death then you will need to ‘sever’ your joint tenancy.  This simply means notifying the other joint owner that you no longer want to hold the property as joint tenants and we can assist you with doing this formally and notifying the land registry so that the title deeds are changed accordingly. If you sever the joint tenancy then you can leave your share of jointly owned property to whoever you wish in your will.

You can use your will to set out any wishes or preferences regarding your funeral arrangements, and if you want to be buried or cremated. These are however simply ‘wishes’, your executors are not bound by them in the way they are bound by other terms in a will.

Executors and trustees named in your will can act as witnesses for you.

Beneficiaries cannot be witnesses to you signing your will.

Witnesses must also not be the spouse or civil partner of any beneficiary in your will.

Witnesses must be over 18 and must understand the nature and seriousness of the role, they must be able to watch you sign (so cannot be blind or partially signed).

You must have 2 witnesses to your signature on your will, they must both be present at the same time to watch you sign your will and must also both watch each other sign as witnesses at the same time.

You must tell us if you have any intention in the future to marry or form a civil partnership and whether, if you do marry or form a civil partnership, you want your will to remain in place (unless specified otherwise a will is automatically revoked If you marry or enter into a civil partnership).

We suggest that you consider including ‘substitute’ executors so that there is someone else to act as executor if an appointed executor has pre-decreased you.  You should consider, if you have 2 executors and one has pre-deceased you, if you want the substitute executor(s) to act with the original executor or if you want the substitute to only act if there is no other surviving original executor.

If you are leaving a gift of money to someone you should consider whether you want this to be free of any inheritance tax?

If you are leaving property to someone you should consider whether you want this to be free of any mortgage?

You should consider whether you want any gifts of specific sums of money to take account of inflation so that, for example, if you want to leave someone £5,000 will they simply inherit £5,000 or would you want them to be given a sum equivalent to the value of £5,000 in ‘real terms’ at the time of your death.

You should consider whether, if someone named as a beneficiary in your will has died before you, you want their children or grandchildren (if any) to inherit their share instead?

Any reference to children means natural children or adopted children, it does not include stepchildren or any children someone is legal guardian of or has parental responsibility for.  You need to identity if anyone you wish to benefit in your will is not a natural or adopted child so we can ensure they are included if you want them to be.

Is there any possible confusion about items you specifically want to gift and, if so, make sure these are identified as clearly as possible so your executors know exactly which items are being specifically gifted and which form part of the rest of your estate.

All the property, possessions, and other valuables owned by the deceased.

The person or entity who receives a gift or inheritance from the will.

A gift of real property (land, buildings) in a will.

A trust where the trustees have the discretion to decide who receives the benefits and how much.

The person appointed by the will to administer the estate after death.

A specific item, sum of money, or other asset given to a beneficiary.

Dying without a will.

The process of distributing assets when someone dies without a will, according to the laws of the jurisdiction.

The children, grandchildren, great-grandchildren etc, i.e the descendants, it is not restricted to the children of the testator.

Individuals who co-own a property together, each holding equal rights and ownership. They are responsible for the whole of the property, and if one dies, their share automatically transfers to the remaining joint tenant, a process known as “right of survivorship”.

A gift of money, property, or other assets left in a will.

A legal arrangement within a will that allows a specific person (the life tenant) to benefit from assets (often a property) during their lifetime, while ensuring those assets eventually pass to named beneficiaries upon their death. This trust structure offers the life tenant the right to reside in or receive income from the assets for their lifetime, but they don’t gain ownership.

Refers to the legal rights and duties a parent has towards their child, encompassing all aspects of their upbringing. Someone can have parental responsibility without being a biological parent. A court can make a parental responsibility order giving parental responsibility to the person named in the order. Mothers automatically have parental responsibility. Fathers who are (or have been) married or in a civil partnership with the mother automatically have it as does any father who is named on the child’s birth certificate.  Parental responsibility includes providing a home, protecting and maintaining the child, choosing their education, consenting to medical treatment, and making other important decisions regarding the child’s upbringing.

The legal process of proving the validity of a will and distributing the estate according to its terms.

The remaining assets after debts, specific gifts, and legacies have been paid.

The act of changing the way a jointly owned property is held; from joint tenants to tenants in common.

Where each owner of a jointly owned property has a separate, identifiable share. That person’s share will not pass to the other joint owner by the right of survivorship and so can be left to someone else in their will.

The person who makes the will.

A legal document that outlines how a person’s assets are to be distributed after death.