Wills

Question 1

What are the requirements for a valid will under the Wills Act 1837?

Answer 1

The testator must have mental capacity and the intention to make a will.

The will must be in writing.

The will must be signed by the testator in the presence of two or more witnesses.

The witnesses must also sign the will in the testator’s presence.

Question 2

What happens if a will is made under undue influence?

Answer 2

A will made under undue influence is not considered the act of the testator and will not be admitted to probate

Question 3

Can a solicitor draft a will that includes a substantial gift to themselves?

Answer 3

No, unless the testator has taken independent advice.

Question 4

How can a will be amended after it is executed?

Answer 4

A will can only be amended if the change is witnessed in the same manner as the execution of a will, or by creating a codicil.

Question 5

What automatically revokes a will?

Answer 5

Marriage, unless the will shows it was made in contemplation of the marriage.

Destruction of the will by the testator with the intention to revoke.

Execution of a new will that is inconsistent with the earlier one.

Question 6

What happens to a gift in a will if the specified property is not in the estate at the testator’s death?

Answer 6

The gift fails (adeems), and the beneficiary does not receive anything under that gift.

Question 7

How are collective gifts treated in a will?

Answer 7

Collective gifts (e.g., “my jewelry”) include items in the collection at the date of the testator’s death, including items added after the will’s creation.

Question 8

Who inherits under intestacy if a decedent dies with no will but has a surviving spouse and children?

Answer 8

The spouse inherits personal chattels,
£270,000, and half the remaining property.
The children split the rest.

Question 9

What are the primary duties of personal representatives?

Answer 9

Preserve the estate and pay debts.

Distribute assets according to the will or intestacy rules.

Act in the best interests of beneficiaries, using reasonable care and skill.

Question 10

What is the current nil-rate band for IHT?

Answer 10

£325,000.

Question 11

How is IHT on potentially exempt transfers (PETs) calculated?

Answer 11

If the donor dies within 7 years of the gift, the PET becomes chargeable. Taper relief may reduce the tax if more than 3 years have passed since the gift.

Question 12

What happens if a testator divorces after executing a will?

Answer 12

The former spouse is treated as having predeceased the testator. Any gifts or appointments of the spouse as executor will be revoked, but the rest of the will remains valid.

Question 13

What is dependent relative revocation?

Answer 13

If a will is destroyed with the intention to revoke it but the destruction was based on a mistaken belief (e.g., intending to replace it with a new will that is never created), the original will might still be valid.

Question 14

What is a specific legacy?

Answer 14

A gift of a specific part of the estate (e.g., “my engagement ring”). If the property is not in the estate at the time of death, the gift fails (adeems).

Question 15

What is a residuary legacy?

Answer 15

A gift of everything left in the estate after specific, general, and pecuniary gifts, and after expenses and debts are paid.

Question 16

What happens if a beneficiary predeceases the testator?

Answer 16

The gift lapses and falls into the residue, unless:

The will specifies an alternative beneficiary.
The beneficiary is the testator’s child or descendant and has issue who survive the testator, in which case the gift passes to the issue.

Question 17

Can a personal representative renounce their role?

Answer 17

Yes, if they haven’t intermeddled in the estate. Renunciation must be filed at the Probate Registry.

Question 18

What powers do PRs have over estate property?

Answer 18

PRs can sell, mortgage, lease estate property, or appropriate estate assets to satisfy legacies with beneficiary consent. They can also insure and invest estate assets.

Question 19

How are assets distributed under intestacy if the decedent has no spouse or children?

Answer 19

The assets pass in the following order:

Parents.
Siblings of the whole blood.
Siblings of the half-blood.
Grandparents.
Aunts and uncles of the whole blood.
The Crown.

Question 20

What is taper relief for PETs?

Answer 20

If the donor dies within 3-7 years of making a PET, taper relief reduces the tax owed on the gift by 20% for each year beyond 3 years from the date of the gift.

Question 21

What is the Residence Nil-Rate Band (RNRB)?

Answer 21

An additional IHT allowance (up to £175,000) for a home passed to direct descendants. It is tapered by £1 for every £2 the estate exceeds £2 million.

Question 22

How can a beneficiary vary their inheritance?

Answer 22

Through a variation, which:

Must be in writing and made within 2 years of death.
Must not be made for monetary consideration to avoid IHT or CGT consequences.

Question 23

Can a beneficiary disclaim their inheritance?

Answer 23

Yes, a beneficiary can disclaim their inheritance orally or in writing (writing is required for IHT/CGT purposes). The disclaimed property falls into the residue or intestacy.

Question 24

Who can claim under the Inheritance (Provision for Family and Dependants) Act 1975?

Answer 24

Spouse or civil partner.

Former spouse or civil partner (if not remarried).

Children or persons treated as children of the family.

Dependants maintained by the deceased.
Cohabiting partner of 2 years before the death.

Question 25

What are the first steps for personal representatives (PRs) after a person’s death?

Answer 25

Identify and secure the deceased’s assets.

Arrange for payment of funeral expenses.
Obtain a grant of representation (probate or letters of administration).

Pay the deceased’s debts before distributing the estate.

Question 26

When can personal representatives distribute the estate?

Answer 26

After all debts, liabilities, and taxes are paid. PRs must also ensure that they wait six months after obtaining the grant of probate to avoid claims under the Inheritance (Provision for Family and Dependants) Act 1975.

Question 27

How can PRs protect themselves from unknown claims?

Answer 27

By placing advertisements under Section 27 of the Trustee Act 1925 in:

The London Gazette.
A local newspaper.
This provides protection from claims after two months from the date of the notice.

Question 28

What is the order of payment for unsecured creditors?

Answer 28

Property undisposed of by the will (e.g., partial intestacy).

Residue of the estate.

Pecuniary legacies (abate proportionately).
Specifically devised or bequeathed property.

Question 29

How are legacies paid if there are insufficient funds?

Answer 29

Legacies abate (are reduced) proportionately unless the will specifies a priority for certain legacies.

Question 30

What happens if an estate is insolvent?

Answer 30

Debts are paid in the following order:

Funeral, testamentary, and administration expenses.

Secured debts from the secured property.

Preferred debts (e.g., employee wages).

Ordinary debts (e.g., HMRC taxes).

Deferred debts (e.g., loans from a spouse).

Question 31

What is the IHT rate on lifetime chargeable transfers (CLTs) to trusts?

Answer 31

20% if paid by the trustees out of the transferred property.
25% if paid by the donor.

Question 32

What is the 10% charitable legacy rule?

Answer 32

If a decedent leaves more than 10% of their estate to charity, the IHT rate on the rest of the estate is reduced from 40% to 36%.

Question 33

How does the transferable nil-rate band work?

Answer 33

Any unused portion of a deceased spouse’s or civil partner’s nil-rate band can be transferred to the surviving spouse, giving them up to 200% of the current nil-rate band.

Question 34

What is the time limit for making a claim under the Act?

Answer 34

A claim must be made within six months from the date of the grant of representation.

Question 35

What factors will the court consider in a claim for reasonable financial provision?

Answer 35

The applicant’s financial needs and resources.

The financial needs and resources of other beneficiaries.

The size and nature of the estate.

Any obligations or responsibilities the deceased had towards the applicant.
The applicant’s physical or mental condition.

Any other relevant factors.

Question 36

What happens if a will leaves a gift to a witness?

Answer 36

The will remains valid, but the gift to the witness fails unless there are two other independent witnesses.

Question 37

Can a minor receive a legacy?

Answer 37

Minors cannot give a valid receipt for a legacy unless:

The will specifically allows it.
PRs hold the gift until the minor turns 18.
PRs appoint a trustee to hold the gift for the minor.

Question 38

What is the “gift with reservation of benefit” rule?

Answer 38

If a donor gives away an asset but continues to benefit from it (e.g., living in a gifted house rent-free), the asset is treated as part of the donor’s estate for IHT purposes.

Question 39

What documents are required for a grant of probate?

Answer 39

An official copy of the death certificate.

The original will (plus two copies).

A completed inheritance tax (IHT) form showing IHT paid or that no IHT is due.
The probate court fee.

Question 40

What happens if no executor is named in the will?

Answer 40

The court will issue “letters of administration with will annexed” to the residuary beneficiaries or other interested parties, following a prescribed order of priority.

Question 41

What is a mutual will?

Answer 41

Mutual wills are made by two or more people, often spouses, with reciprocal provisions. They include an agreement not to revoke the will. If one party revokes, a constructive trust may arise to enforce the agreement.

Question 42

How can a will be amended without creating a new will?

Answer 42

A will can be amended by a codicil, a separate document referring to the will that is executed in the same way as the will.

Question 43

What happens if a will lacks an attestation clause?

Answer 43

If there’s no attestation clause, evidence (e.g., an affidavit) must be provided to prove that the will was validly executed.

Question 44

Do witnesses need to know they are witnessing a will?

Answer 44

No, witnesses do not need to see the contents of the will or know it is a will.

Question 45

How does a will get revoked by destruction?

Answer 45

A will is revoked if it is destroyed by:

The testator (or someone at their direction).
With the intention to revoke the will.
The destruction must occur in the testator’s presence.

Question 46

What is the doctrine of dependent relative revocation?

Answer 46

If a will is revoked under a mistaken belief (e.g., intending to replace it with a new will that is never created), the original will might still be valid.

Question 47

What happens if a specific gift changes form?

Answer 47

If the property has changed form but not substance (e.g., a stock split), the gift does not adeem, and the beneficiary receives the changed property. If the change is substantial (e.g., a company merger), the gift adeems.

Question 48

What happens if a general legacy (e.g., “a BMW car”) is unavailable?

Answer 48

The personal representative must use estate funds to purchase the item for the beneficiary if funds are sufficient.

Question 49

What is per stirpes distribution?

Answer 49

Under per stirpes distribution, if a child of the deceased predeceases them but has surviving children, those grandchildren inherit the deceased child’s share.

Question 50

Who inherits under intestacy if there is no spouse, children, or parents?

Answer 50

The estate passes to siblings of the whole blood. If there are none, it passes to siblings of the half-blood, followed by grandparents, aunts/uncles, and finally to the Crown.

Question 51

Can personal representatives charge for their services?

Answer 51

PRs generally cannot charge unless:

The will authorizes it.
There is an agreement with the beneficiaries.

Question 52

What powers do PRs have to invest estate funds?

Answer 52

PRs can invest estate funds in almost anything, but the investment must be suitable for the trust and diversified. They may be liable for losses if they breach these principles.

Question 53

What is the seven-year rule for IHT?

Answer 53

Gifts made more than 7 years before death are exempt from IHT. If the donor dies within 7 years, the gift may be taxed, with taper relief reducing the tax for gifts made 3-7 years before death.

Question 54

What qualifies as an exempt transfer for IHT?

Answer 54

Exempt transfers include:

Gifts to spouses (except for non-domiciled spouses over £325,000).
Gifts to charities.
Small gifts under £250 per recipient.
Regular gifts out of income that do not reduce the donor’s standard of living.

Question 55

What is quick succession relief?

Answer 55

This relief applies when someone dies within 5 years of inheriting property on which IHT was paid. The relief reduces the IHT payable on the second death, decreasing by 20% for each year between the two deaths.

Question 56

How is the Residence Nil-Rate Band (RNRB) tapered?

Answer 56

For estates exceeding £2 million, the RNRB is reduced by £1 for every £2 over the £2 million threshold.

Question 57

What is the difference between a disclaimer and a variation?

Answer 57

Disclaimer: Rejects an inheritance entirely; cannot specify an alternative recipient.
Variation: Allows the beneficiary to redirect the inheritance to another person, potentially avoiding IHT or CGT if done within 2 years of death.

Question 58

Can beneficiaries force PRs to distribute the estate?

Answer 58

Beneficiaries cannot force distribution before administration is complete, but they can ensure the estate is properly administered. If PRs delay, beneficiaries can apply to the court.