Wills Flashcards
How many witnesses need to sign for a valid will?
2
Who else needs to sign?
Testator
How can a will be revoked usually?
- If it’s not the most recent one
- Marriage
Who can make a claim against the D’s estate?
- Spouse/civ partner
- Former spouse/civ partner
- Anyone who lived with the D. for min 2 years before they died
- Children of the D
- Anyone who D. treated as a child i.e. stepchildren
- Dependants. More than merely trivial/gifts
What’s the time limit for making a claim on someone’s estate?
6 months from grant of probate or letters of admin
What if a T writes in their will I dont want x to be able to make a claim to inherit against my estate after im dead?
Doesnt matter. They can still make a claim.
If spouse died without using any of their NRB, then it can be used by other spouse upon their death.
325 + 325.
How much is the NRB?
325k.
If min 10% of estate is left to charity, how much will the IHT rate be?
36%.
What’s the IHT rate on death?
40%.
Executors are personally liable to any unpaid creditor unless:
- They place an advert in The London Gazette and other appropriate publications.
- Executors should also carry out searches for land held for creditors and bankruptcy declarations against the deceased and any adult beneficiaries.
If a deceased dies without a will but with a spouse and kids:
Spouse gets statutory legacy of 322k, plus half the deceased’s remaining property and chattels (moveable property).
Children split the rest.
However, if the surviving spouse wants the matrimonial home they can force the executor to give that to them. If it’s worth more than the spouse’s share, they will have to pay the difference to the estate.
In what situations could a will be invalid?
- The formalities of creation of a will in the Wills Act were not complied with;
- It was prepared in suspicious circumstances;
- There was undue influence; and
- D lacked testamentary capacity.
What to first do if you think a will is not valid but executor has been chosen in it and they are applying for grant of probate?
Enter a caveat to prevent them from obtaining probate.
What if the deceased left nothing to their kids and everything to their spouse? Will there be any claim by them against the estate?
Adult children with no particular financial or other needs find it difficult to succeed under the Inheritance Act. The needs of all the parties will be weighted.
How long must someone live with you to claim as a dependent for financial provisions?
2 years minimum.
If someone has a will but doesn’t say who will receive the residue, who gets it?
For each category, they get the whole thing. If no one in that category, then the next category gets everything.
Spouse
Kids (or kids of kids)
Parents
Siblings
How long should the executors wait before distributing the estate?
6 months from the grant of probate.
How much is the residence NRB?
175k.
If trust created for Chloe 23 and Daniel 15 to receive after 25, what’s the power of advancement and maintenance avail to them?
Chloe:
Maintenance - can get full income from her share.
Advancement - possible (at trustee’s discretion; must be for her benefit).
Daniel:
Maintenance - under 18 so at trustees discretion.
Advancement - possible (at trustee’s discretion; must be for his benefit; need parent or guardian to give valid receipt or apply funds directly to school etc.)
When joint executors ask what are their responsibilities under the admin of the estate what do you say?
When acting as joint executors, you must work together on matters such as:
● Applying for probate.
● Collecting the assets.
● Paying any debts and liabilities of the estate.
● Distributing the estate in line with the terms of the will.
The need to act in good faith and in the interest of the estate. Joint and several liability. The acts of one binds the other and the estate.
What are the duties to invest for trustees of a trust fund?
Trustees are under a duty to act in good faith and invest fund property.
Are executors of the estate personally liable to unpaid creditors? How do they protect themselves?
Executors are personally liable to any unpaid creditor unless they place an advert in The London Gazette and other appropriate publications.
Executors should also carry out searches for land held for creditors and bankruptcy declarations against the deceased and any adult beneficiaries.
How will a will alteration be valid?
Initials of testator and two witnesses next to the alteration.
If not: presumption that alteration happened after execution of the will and is therefore invalid. (Ask the folks if there is evidence that the unattested alterations took place before the will was made).
What happens if I say in my will:
'’I give 1,000 shares in ABC to Milla’’, but at the time of my death, I don’t own those?
It’s a general legacy. If I said ‘‘my ABC shares, then it would fail.
But, since it is a general legacy, the executors would have to purchase those shares, or, transfer other assets of equivalent value to the beneficiary.
What happens if someone witnessed the will and they received a gift under it?
The gift fails. Witnesses are not entitled to gifts under the will. :(
It will pass according to the intestacy rules.
How long must someone be cohabiting with the deceased in order to claim from the estate?
2 years. Can’t just be a friend. Must be akin to a civil partnership/marriage.
What if the person living with the deceased contributed financially or otherwise to the house of the deceased? Are they entitled to claim anything?
They could receive an interest under a constructive trust.
What should the person who is seeking info about whether they have an interest under the deceased’s estate do to figure out if they have a potential claim?
Get a solicitor. It’s a conflict of interest for us to advise him.
If there’s trusts named in the will, they wont be subject to IHT as they do not form part of the estate.
Spouse doesn’t pay any IHT on stuff passed to them from their deceased spouse.
How much is the residence NRB and when does it apply?
175k. It applies if the house goes to children or grandchildren, for the main residence. For spouse, it doesn’t apply bc there’s no IHT for the main residence passing to them.
What if minor is named in the will?
Need to appoint a second personal representative (trustee).
If a deceased passes assets to their spouse, are the assets subject to IHT?
No. Assets passing to spouse are exempt of IHT.
What happens to a will if a person
- divorces?
- remarries?
- Divorces: that person is just removed from the will.
- Remarries: the whole will is null and void.
Structure of a will
Typical structure of a will : ANDREW
Full name of testator and address.
Refer to it as a will.
Include a space at the end of the will to be dated.
Revocation clause if previous will or even if not made before (“I hereby revoke all former wills, codicils, and testamentary dispositions made by me and declare this to be my last Will.”)
Clause about the disposal of their body.
Appointment of execs and trustees (if any trust est in the will).
Appointment of guardians (if they have children who are minors).
Non residuary gifts of property or assets to be given? I.e. specific things.
Then, think if additional powers are required.
Finish the will by incl a properly drafted attestation clause which states the signing procedure (“Signed by [Testator’s Name], the testator, in our presence and then by us in the presence of the testator and of each other.”)
Execution of a valid will
In writing, signed by the testator, and must be signed in the presence of two independent witnesses. These witnesses must be over the age of 18 and non-beneficiaries to the will or else it would invalidate their gift in the will. The witnesses must also sign the will.
If I leave a 50k in my will to my bro but my bro predeceases me, but leaves kids of his own, wyd?
It will fail. The pass-on provision only would work for direct descendants, like someone’s own children.
What docs do I need to apply for grant of probate?
Two copies of the will, death certificate, tax form saying IHT was paid and probate court fees.
If a PR is worried about a possible claim against the estate, what can they do?
They should wait 6 months from the date of the grant, because a claim cannot be made after this time. They can also purchase insurance.
How much is the 7 year taper relief for gifts made before death?
0-3 years - 100% IHT payable.
3-4 years - 80% etc.
Duties as trustees under a will:
There is a need to invest in accordance with the standard investment criteria as regards suitability of investments, requirement to take investment advice, and the need to diversify. You were told that the firm had no expertise in financial services, therefore no-one has the necessary competency to give specific advice on investments for the trust fund. You could offer to direct the client to a suitably qualified third party.
How executors of the estate should act:
In good faith and in the interest of the estate.
Liability: joint and several liability. The acts of one binds the other and the estate.
Executors are personally liable to any unpaid creditor unless:
They place an advert in The London Gazette and other appropriate publications.
Executors should also carry out searches for land held for creditors and bankruptcy declarations against the deceased and any adult beneficiaries.
How much business property relief can a person get if they are passing shares under a will?
ONLY if they own 50% of quoted shares in a company OR
100% of shares in a partnership.
If 50% of shares in a company giving them voting rights, then they get 50% relief.
If it’s a partnership or sole trader business, 100% relief.
Simple next steps in probate writing:
Next steps
We need now to make an application for a grant of probate as I mentioned. There will be some inheritance tax to pay at this stage, and I will be in touch shortly to discuss this.
In the meantime, if you have details of any debts and funeral expenses, please could you send them to me.
Let’s say in the will the deceased (who has a wife) leaves their whole estate to their daughter and their friend. But both are dead. WYD?
The daughter’s kids can get her residue as she’s a direct descendant. However, the friend’s kid can’t inherit their share because not direct lineal descendant. So, it will pass under intestacy rules (outside the will) and the wife (surviving him by 30 days), will get that share.
When someone dies and their properties go up in value, do they need to pay CGT on death?
No CGT! Only IHT!
