Camden Solicitors

ANSWERS TO FREQUENTLY ASKED QUESTIONS ON WILLS & PROBATE – SOLICITOR CAMDEN

Can children under the age of 18 inherit from a will ?

Children cannot inherit until they reach the age of 18. Below this age the funds are held in trust. If you think that 18 is too young an age for your children to inherit a large sum of money, you can specify that they do not receive the capital sum until a later age. They will, however, be entitled to receive any income from the trust fund as soon as they reach 18. Apart from this, the trustees decide what income and/or capital can be used for the benefit of the children, e.g. school fees.

Are step children included if I leave my estate to “my children” ?

Under the Will if you leave the residue of your estate to your children in equal shares, then your step-children will not be provided for. This is because step children do not come into the definition of children for the purposes of making a will. If you have step children you can select the option “to pay the residue to children/beneficiaries in different shares”. This allows you to then give named individuals shares of your estate to prevent step children being left out.

Should I contest a will?

Whilst testamentary freedom (the ability to write a will benefiting whomsoever you wish) is a linch-pin of English law, injustices can only be righted by contesting a will. Whilst most cases are settled without the need to go to court, the courts do not shy away from assisting people who are contesting a will or benefiting those who have been overlooked.

Am I eligible to contest the will?

Under the Inheritance (Provision for Family & Dependants) Act 1975 a large category of persons are eligible to contest a will, including, spouses, children (including adult children), former spouses and dependants.

How much can I leave when I die without having to pay Inheritance Tax?

The Inheritance Tax (”IHT”) limit known as the Nil Rate Band for the tax year 2009/2010 is set at £325, 000. If the total value of all your assets including your house is more than the Nil Rate Band, your estate may be liable to IHT.

What if I jointly own property ?

Many people don’t realise that if they own property (land/buildings jointly with someone else) as “joint tenants” (e.g. most married couples own jointly owned property as joint tenants) then their “share” of that property automatically passes to the other person upon death and does not form part of his or her estate. There is therefore no need to make any mention of that “share” of a property in a Will nor any purpose in doing so.

However, if you own a share of a property as “tenants in common” (e.g. this is more likely in the case of an unmarried couple) then you can leave your share of that property to whoever you want in a Will (e.g. to the other co-owner). If you are in any doubt as to how your property is owned and/or you want to change the way that you own it, you must seek legal advice, without a valid Will it can take months or sometimes even years to sort out your affairs and in the meantime your surviving dependants (either a spouse or a partner or a child) have all the usual household expenses and possibly no access to any money because all of your income may be frozen until everything has been sorted out. If you have left a Will it shouldn’t take more than two or three months at most to sort everything out and for your executors to release your assets to the people of your choice

If I give money to my children before I die will it be taxed?

No. Your estate will be taxed if you make gifts and then die within 7 years of making the gift, subject to your estate being taxable when the gift is factored back in. If your estate would still be under the Nil Rate Allowance then there will be no liability to Inheritance Tax. You should however remember to only give away what you can afford to give away. Once you have given money away then you cannot rely on your children giving it back. Problems can arise if children subsequently die divorce or go bankrupt.

Can I give someone the right to live in my property after I die without the right to own or sell it?

Yes you can grant either a right to reside or grant a lifetime interest in the property. This will ensure they have use of the property without being able to gain access to the capital in the property.

When is inheritance tax payable?

Inheritance tax is payable six months after the end of the month in which the death occurred. However, inheritance tax on property can be paid in ten equal annual instalments but the Inland Revenue will charge interest on these payments if you choose this option.

What is the basic probate application procedure ?

When a person dies somebody has to deal with their estate (the money, property and possessions left) by collecting in all the money, paying any debts and distributing the estate to those people entitled to it.  The term probate generally means the issue of a legal court order authorising executors to do this.

There are three types of grant of representation:

• Probate – issued to one or more of the Executors named in the deceased’s Will;
• Letters of Administration (with a Will annexed) – issued when there is a Will, but there is no Executor named, or when the Executors are unable to apply, or do not wish to be involved in dealing with the estate;
• Letters of Administration – issued when the deceased has not made a Will, or any Will made is not valid.

When is a Grant of probate needed ?

Organisations holding money in the deceased’s name need to know to whom that money should be paid, and the grant is proof that the person named in it may collect the money.  The estate left when a person dies passes to the people named in his or her Will.  If there is no valid Will it passes to his or her next of kin.  The distribution of the estate to the correct people is the responsibility of the person named in the grant.  The grant is proof to anyone wishing to see it that the person named in it is entitled to collect in and distribute the estate.

The Executors will need a grant to transfer or sell a property held only in the deceased’s name.  A house must NOT be advertised for sale too soon after the owner’s death as a sale cannot be completed until the Executors have obtained the grant.  The date of issue of the grant cannot be guaranteed to coincide with the final stages of any sale.

When is a Grant of Probate not necessary ?

Sometimes a grant is not needed and the Executors may wish to ask anyone holding the deceased’s money whether they will release it to the Executors without seeing a grant.  If they agree they may attach conditions.  It is for the Executors to decide which is the cheaper or easier option.  The following are examples of when a grant may not be needed:

There are organisations who may release the money to the Executors without a grant if the amount held is small and there are no complications.  Among these are Insurance Companies and Building Societies.

The Executors will not usually need a grant when a house is held in joint names and it is clear that the house automatically becomes the property of the surviving owner.  If the Executors are in doubt on this point they may need to enquire whether a grant is needed to change the ownership.

Who is entitled to a Grant?

There are rules which govern who may be given a grant, and whether or not one is issued may depend on the circumstances in a case.

If there is a Will with named Executors they are the first people entitled to a grant.

If there are no Executors or the Executors are unable or unwilling to apply, the next person entitled to a grant is any person named in the Will to whom the deceased gives all his estate, or the remainder after gifts have been paid.

If the deceased has not made a valid Will, application for a grant should normally be made by his or her next of kin in the following order of priority:

1. Husband or wife

2. Sons or daughters

3. Parents

4. Brothers or sisters

5. More distant relatives

A grant cannot be issued to any person under the age of 18.  If there are no Executors and potential beneficiaries are not sure whether they are entitled to apply they should still complete and return the forms and the Probate Registry will let them know.

When more than one person is entitled to a grant the Executors may all obtain a grant together, however there are a maximum of four applicants allowed.  In most cases only one person needs to obtain a grant, but there are circumstances when the Executors and another person may need to obtain a grant together.  If this is the case the Probate Registry will let them know as soon as possible after they have received the application.

If the representatives are asked by someone else to apply on their behalf, a note should be sent with the application giving the details of that person, and the reason why they are not applying.  If it is not possible to issue the grant to the Executors the Probate Registry will explain the reasons.

Stages for applying for a Grant of probate ?

The five stages for applying for a grant are:

1. obtain the application forms

2. choose where the Executors or Personal Representatives wish to be interviewed

3. complete the application forms

4. return them, with the death certificate and the original Will to the appropriate Probate Registry

5. attend the interview

What forms need to be sent with the completed application for probate ?

1. The death certificate

2. The original Will

For wills advice in Camden, please click on the link.

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