Executors & Trustees

By | Executor, Trustees, Wills | No Comments

Many Testators will choose the same people to act as both their Executors and Trustees, however each role is very different and comes with its own responsibilities so this may prompt testators to consider appointing different individuals for each appointment. Firstly, those who will deal with the administration process of the Estate – the Executors, and those who will manage any assets which are required to be held once the administration of the Estate is complete – the Trustees.   Where necessary and upon the death of the testator, the duty of an Executor is that they shall apply to the Court for a Grant of Probate. This enables the Executor to accumulate the assets and where it is appropriate, liquidate assets to enable distribution, in accordance with the terms of the Will. Before distributions, they must ensure that any debts and liabilities have been settled. The role could include…

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Wills abroad

By | Wills | No Comments

Wills Abroad Most, if not all WillPack members come across clients with assets abroad at some stage during their estate planning career. When this happens, the most important questions you can ask is, ‘what assets do you have overseas?’ and ‘do you have a Will in the respective country?’   If a client has real estate abroad, it is important the client is advised to seek advice in the country the property is situated in and seek a Will to deal with the estate in this country, if they have not done so already.   In the case of the client not having a Will in that country at the time of making the UK Will, WillPack can prepare Wills to deal with Worldwide assets. This ensure that the client has a Will that can be brought forward to foreign courts to consider the terms of the Will. However, it…

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Lost Wills

By | Will Storage, Wills | No Comments

Should it be the case that a Will cannot be found by family members after death, it is possible for a copy of the Will to be submitted for probate. This would be a complex procedure, with the Executors providing very detailed evidence that the copy is true to the Testator’s intentions and that the original Will was attested. Matters will be made more complex if the last known location of the Will was in the Testator’s possession. In such a case, a presumption arises that the Testator has destroyed the Will with the intention of revoking it. This presumption is rebuttable by showing enough evidence of non-revocation. The exact amount of evidence required will vary from case to case, as the strength of the presumption of revocation varies depending on the level of security, or lack of it, of the Testator’s custody of the Will. The safer the Testator…

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Law Commission: Making a Will Consultation

By | Legal | No Comments

Law Commission: Making a Will Consultation The Law Commission yesterday (13/07/17) published a consultation paper on the law surrounding Wills. The consultation includes various comments, recommendations and areas for discussion. A brief summary of the main provisions of the consultation paper can be found below. Dispensing Power A number of foreign jurisdictions have what is known as ‘Dispensing Powers’ which allow a court to recognise a Will as valid even if it did not comply with all formalities requirements. The Law Commission proposes similar powers be introduced in England and Wales to act as a safety net for those who have tried to make a Will, but failed to follow the correct formalities. These would be dealt with on a case by case basis and would not introduce a method of making a Will, maintaining that, for example, an unwitnessed Will would not be simply admitted to probate, and it…

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Joint Property Ownership

By | Property | No Comments

When two or more people own a property, there are two types of ownership with the Land Registry, joint tenants and tenants in common. When dealing with property in a Will, depending on how the testators wish to distribute their property, the question of ownership must be raised.   Joint tenants is the most common and standard way for property to be registered at the Land Registry when purchasing a property. The general concept of joint tenants is simple enough to understand. The ownership is tied together between the proprietors, therefore when either passes the away, the survivor(s) will inherit the deceased’s share of the property by survivorship. If this is the wish of the testators, no further action should be taken as this mean the property does not need to enter probate. The survivor(s) will just need to provide a certified copy of the death certificate and a completed…

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Organ Donation

By | Wills | No Comments

Organ Donation It is a fairly common request from clients for their Wills to include a statement in regards to their organs being donated for transplant purposes after their death. Such can be included in the Will using the following wording: ‘If practicable I request that my body or any part of it may be used for therapeutic purposes.’ Please note that this wording only allows for organs to be donated for transplant purposes, and does not extend to donation for medical research. This wording could also be limited to exclude certain organs, for example eyes. Requesting that organs are donated for medical research is less common but can be included in the Will with the following wording: ‘If practicable I request that my body or any part of it may be used for the purposes of medical education and research.’ Alternatively, clients may wish that their body be used…

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Marriage, Divorce and Wills

By | Wills | No Comments

Pending Marriage   One of the most overlooked facts regarding UK Wills is that marriage revokes any current Will the testator has at the time. Most ‘Newly Weds’ do not consider re-visiting their Wills immediately after marriage to ensure that they are still valid and in most cases, the answer is no.   There are provisions that can be made within a Will to ensure that it is not revoked upon marriage, giving the happy couple one less thing they need to consider at such a stressful point in their lives. If you see an unmarried couple, one of the first things you should ask if whether or not the clients are expecting to marry. There is no time period that is considered too soon or too late to include this within a Will, as long as the clients have a valid Will that will not be revoked.   Divorce…

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Discretionary Fund Management

By | LPA | No Comments

Following guidance and suggested wording issued by the Office of the Public Guardian with regards to Discretionary Fund Managements (DFM’s), we looked at this in great detail and continued to review the situation. WillPack along with a number of other organisations took the decision not include the instruction due to uncertainty around the issue.   Having taken further legal and professional advice after talking to a number of our IFA’s, we will now be issuing a new LPA instruction form to include the DFM instruction as a yes or no option. However, caution will need to be taken as The Office of the Public Guardian cannot guarantee that the bank/ organisation will accept the suggested wording and it is advisable that the donor contacts the bank/ discretionary investment manager to confirm in writing that they will accept the wording; or they seek their own legal advice as appropriate before the…

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Duty of Care – Taking Will instructions

By | Taking instructions | No Comments

What considerations are there when taking will instructions? As part of our process, we will usually issue drafts to you via e-mail and ask that you respond to us within 10 working days. As soon as you have accepted the instructions from your clients you then have a duty of care to keep time delays to a minimum to produce the final document to them. The case White v Jones [1995] highlights this problem in relation to Wills. As a brief overview; the client, Mr White contacted his solicitor, Mr Jones, in relation to changing his Will.  His current Will had excluded his daughters. Mr White later reconciled his differences with his daughters hence wishing to change his Will to now make provision for them. Mr Jones, took Mr White’s instructions and more than 40 days later still without the Will being produced, Mr White died. The daughters took legal…

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Residential Nil Rate Band – Qualifying Residential Interest

By | RNRB | No Comments

Residential Nil Rate Band – Qualifying Residential Interest The rules for the Residential Nil Rate Band (RNRB) introduce a variety of new terms that need defining. The first of these is a Qualifying Residential Interest. The new S8H Inheritance Tax Act 1984 defines a Qualifying Residential Interest (QRI) as an interest in a dwelling which has been the deceased’s residence at some time during his period of owning the property. This includes a property’s garden or grounds. Residence itself is not defined in the Act. In the majority of cases it will likely be clear whether a property is a person’s residence (as the majority of people will only own one property, their main residence). For when it is not, it is assumed that Capital Gain Tax case law will be relevant in this area. The property doesn’t have to be a main home and there is no minimum ownership…

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