All about wills

Adrian and Adam quiz Jan Wright

Jan Wright of solicitors Cartmell Shepherd answers your questions about wills and probate.

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Lynne Haywood says: "My father's will leaves everything to my brother and I, but we can't even see his bank account or sell the house until we have probate.

"The dictionary says probate is the proving of a will, and as the same solicitor doing it made my father's will, why will it cost £700 and a court visit to prove?"

She thinks the will is valid, but third parties need to rely on it being valid - the person buying the house, the bank handing the money over to them.

The ultimate way to show that a will is valid is to have it proved. What this means is that the court will say it is a valid will and the people are entitled to get the assets.

Once you've got the grant of probate - basically a piece of paper - you can pass that to the bank and they will give you the money.

Sometimes you won't need to go to court. If you've got a very small estate it might be possible to get the money from the bank without that.

It depends a lot on the institutions concerned.

Neville Eves from Staffordshire writes: "My mother-in-law died in 1999 owning 594 Halifax (now HBOS) windfall shares.

"She transferred these all to my wife, but because I accidentally wrote the number of shares as 549, my wife received a letter from the Halifax registrar requesting a copy of the Grant of Probate to release the extra 41 shares.

I explained there was no probate, as very little money was involved. Will these shares now remain forever in limbo (we still get annual reports but no dividends)?"

The shares are always going to belong to his mother's estate and therefore to the people entitled to that.

Whether or not a grant of probate is necessary depends on the institution.

If the institution dig their heels in and say the only way we are going to release these is to get a grant, then they are entitled to do that if the whole estate is worth more than £5,000.

Thomas Matthews says his father organised all his finances and estate before his death, but two years on, probate still hasn't been granted and he's finding it hard to get answers from the executors. How long should it take?

This is relatively unusual. Part of the probate process involves telling the court you've done everything you have to do in relation to Inheritance Tax and that's where delay often occurs because you need to find out the value of the estate for IHT purposes.

If it's more than £240,000 you have to start filling in forms and if it's more than £255,000 you often start having to pay tax.

It often takes a long time to sort all that out and it needs to be done before the grant of probate is issued.

You have to pay at least some of the Inheritance Tax before the grant is issued.

You might have to borrow the money to pay the tax first.

The banks are aware of this and now if you have money in a bank account - not shares or property - they will release money.

Victor Manton has a simple question - what's the full meaning of double probate?

In a will, executors are appointed. They have three choices:

Get involved and get probate.

Say they don't want anything to do with it and renounce.

Have power reserved to them. This means the other executors can go along and get probate and you can wait in the wings.

If you think at any stage you want to be an executor as well, you can get a grant of double probate and you can take over the reins.

Paul asks: "What's the benefit in paying a solicitor to make your will, when your bank offers to do it for free?"

If you go to a solicitor you will get their expertise and they can also advise you on other things like savings on Inheritance Tax.

Also, if anything does go wrong they all have indemnity insurance.

I believe you get what you pay for and if a bank is doing it for free, they must be wanting to get something back in another way.

Hannah Cinamon from London writes: "Sadly, my father-in-law died recently. He named his bank as his executor and they charge up to a maximum of 4% on the £140,000 estate.

"I gather this is negotiable, but am confused as to how to go about negotiating."

This refers back to the previous question and why you should weigh up the options carefully.

When the person dies, the bank are then the executor and these are the kind of rates they charge.

A solicitor would charge based on how long affairs take to sort out - how complex matters are.

They also charge on top of their time, about 0.5%-1% depending on the value of the estate.

So 4% is quite high but fairly normal for a bank.

Hannah could ask the bank to renounce, but the bank doesn't have to as it was a choice freely made by her father-in-law.

John Horne from Kent says: "Can you start making a will at any age, and is it best to make one straight away, even if you don't have many assets?"

Definitely make a will. Then you get to choose who inherits.

The law is different in Scotland, but in England & Wales, if you don't make a will, you can't choose who gets your money.

There's nothing to stop you doing your own will as long as you stick to the Wills Act of 1837, which means you sign it in the presence of two independent witnesses who then also sign, with all three people being there throughout the process.

Terence Larkin asks: "If I buy a property in Turkey, do I need to have a will drawn up in Turkey or does my English will cover everything?"

It's rather complicated. If you have a valid English will, the English courts would say this applies to your worldwide assets.

However, the authorities in Turkey or any other country might not recognise that will.

If you have any asset in any other jurisdiction, go to a lawyer there and get another will but make sure they talk to your English lawyer so you don't inadvertently end up with a Turkish will which the English courts don't recognise.

Judith says: "We took out saving plans for our children at birth to run until their 18th birthday (£18 per month per child). Can we write something into a will to ensure the policies are continued if anything happens to us and the children are placed with guardians?"

The first thing they have to do is look at the policy.

A person can take out a policy but it may be that if they died, their executors can no longer have that policy - the benefits are personal.

But the children wouldn't get the money until they were 18 anyway, so she needs to think about what she really wants to achieve.

Colin Bendall says: "My wife and I have 'mirror wills'. Upon the death of one of us, can the survivor amend the will to split the property between them and our children? Is this done by a deed of variation?"

This is where you and your spouse or partner say the same thing - giving everything to each other.

It should not be confused with a mutal will, which says the same thing but adds that even if one dies the other says they won't change their will.

With a mirror will, when one peron dies the other can change their will - even when they are both alive, either one can change their will.

Regarding deeds of variation, within two years of the death it is possible to vary the terms of a will of someone who has died and this is often done to save Inheritance Tax.

Sue writes: "I have some relatives in Eastern Europe (part of the EU from next year) and am living in the UK. Are there any UK tax pitfalls if I leave money to them?"

Not in the UK, although I'm not sure what the position might be in Eastern Europe.

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The opinions expressed are Jan's, not the programme's. The answers are not intended to be definitive and should be used for guidance only. Always seek professional advice for your own particular situation.