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Last Updated: Friday, 25 February 2005, 17:57 GMT
Help with Wills
David McMaster, from Just Wills, answers your questions about wills.

John Holt and his wife named their daughter as executor when they had their wills drawn up. Since then she has married, changing both her name and address. Does this mean they have to re-write their wills?

The short answer is no, they don't need to change her details in their Wills. It is important however that she is fairly easy to track down when she is required to act in her capacity as Executor. It may therefore be appropriate for the Testators to leave a letter to be stored with their Will which gives her up-to-date contact details. It is important to ensure that your Will is kept fairly current especially if your financial situation changes etc. It's also worth thinking about keeping your Will in a secure storage facility.

Lesley Saunders's aunt died recently. Lesley knows she wanted to leave some money to her local hospital. But she died suddenly and hadn't updated her will to reflect this. Lesley is the executor and would like to carry out her wishes. Is there any way she can make a donation to the hospital without incurring inheritance tax on the amount?

As an Executor Lesley needs to carry out her Aunt's wishes as detailed in the Will. There are two ways she can effectively vary her Aunt's Will in order to benefit the hospital both of which ultimately rely upon the goodwill of the beneficiaires.

One is to do what is called a Deed of Variation. In order to do that she needs to get all of the beneficiaries (who would be affected) to agree to change her Aunt's Will so that a suitable donation can be made. If the hospital is a registered Charity, then there would be no Inheritance Tax due as a result of the gift.

An alternative solution would be for her to speak to the other beneficiaries with a view to them all making an equal donation out of all their legacies. However this option would have no effect upon any IHT liability of the Estate.

Clive Huggett asks why wills produced for members of the public are written in a language which is incomprehensible to an average person like him. He had what he thought was a simple will made up but when it came to proof-reading, it made no sense.

Legal documentation such as Wills rely upon the use of tried and tested wording that is proven to be completely unambiguous and watertight in terms of meaning and interpretation. Once these have passed successfully though the Legal system they are simply used again and again as standard wording (know as a precedent) ensuring that the Will works in exactly the way it was intended to.

It is extremely important that you as a customer understand any legal document that you will ultimately be signing. If you don't, go back to the Solicitor and make sure they explain areas to you that you don't understand.

Colin McFall is a beneficiary of a late friend's will, currently going through probate. He's been informed unofficially that some of the items he's due to receive have been disposed of. Can he ask for replacement items to be purchased or receive money in its place?

He certainly can and we would recommend that he approach the Executor to confirm the exact situation with respect to the intended gift . Executors are under a duty of care to ensure that when a person dies their assets are secured for the benefit of those intended to inherit them.

What many Executors don't realise is that they are personally liable for the replacement of these items themselves should they go missing.

Derek Hopkins and his wife have both been married before and have a combined family of four children. They'd like their estate to pass to each other and then eventually to be divided equally among the four children. Can they do anything to protect the children's interest in the event of the remaining partner remarrying?

Yes they can. This is a process that we describe as Estate Preservation. The process is very simple. What they need to do is ensure when they write their Wills, they create a Trust in the Will of the first person to die, which holds their assets to be distributed to their children in the event of the remaining partner remarrying or dying. The Trust will give what is known as an Interest in Possession to the surviving partner so that they aren't disadvantaged in any way. It is quite a common process that happens more and more these days with the advent of divorce and people remarrying.

David Morrice asks what protection the next of kin and/or executors have against a solicitor if he is guilty of "professional negligence". And what should they do to seek recompense?

In the first instance they should seek compensation directly from the Solicitor involved. If that isn't forthcoming, then you need to find another Solicitor who will help you sue the one who is negligent. If you can't get any satisfaction there, you should revert to the Law Society which is the governing body for Solicitors. If your claim were against a specialist Will writing firm then the appropriate body to approach would be The Society of Will Writers.

Rachel Stott is buying a property in the US and so will be making an American will. She'd like to know what wording she needs to change in her British will to incorporate the American one so that one doesn't negate the other.

We would also recommend that people who property in other countries Wills which tie up with each other and do not conflict in any way.

All Rachel needs to do is ensure that her American Will relates only to her American assets and excludes any other assets. She should also ensure that her British Will excludes her American assets whilst encompassing any other assets worldwide.

It's not something that we would recommend that people try and do for themselves and it's best to take professional advice.

Christine Boswell has read an article about protecting children's inheritance. It mentioned the " Property Protection Trust Will ". What is it and how does it work?

Property Protection Trust sounds like a product which has been created by an organisation, and it could well be any number of different property protection trust vehicles.

However, as it seems to be written in conjunction with a Will, I assume that it will be similar to the 'Estate Preservation' situation we spoke about with Derek Hopkins whereby property that Christine owns is held in Trust for the benefit of her children on her death with a Life Interest going to her surviving spouse/partner. On their death the property held in Trust is then distributed to the children.

It could of course be one of the more esoteric property protection trusts. If this is the case she should expect to have to take some specialist legal advice. Naturally a hefty price tag will probably be attached to this!

John Kimpton says he can buy a CD Rom for under 10 or ask a will writer to call at his house for 25. So why does anybody still choose to spend 150 on a solicitor? What are the differences in service offered?

The Will writing market, like any other, has a huge array of product providers - some good, some bad. And if you look long and hard enough, you can probably find a Will on the Internet for free!

As a ball park figure, you should expect to pay something in the region of 150 plus VAT for straightforward 'Mirror Wills' for a husband and wife. You could get this from a Solicitor, or if you wanted someone to come and visit you at home, from a home visit Will Writing service.

One word of warning, do no expect somebody who advertises a home visit Will Writing Services for 25 to actually come and do it for that amount. Most of the complaints that go to the Office of Fair Trading and to the Society of Will Writers regarding home visit Will Writing services, relate to products advertised for 19.99 or 25. In reality the client ends up being charged something much more substantial.

As to the differences in service, well, a properly qualified Will Writer or Solicitor, will charge the sensible market rate which I said earlier is a ball park of around about 150.

To do it yourself, well you can buy do it yourself kits from some supermarkets, get CD Roms, or you can go online but you are not getting the value of any professional expertise, and on your own head be it !

But I would certainly repeat my warning to avoid those people who are trying to offer you something which sounds too good to be true.

Albert Cook and his wife share joint tenancy of their house. They'd like to know what are the pros and cons of changing to "tenants in common"?

When you own your house as joint tenants you own 100% of the value of the house together. This means that when one of you dies ownership simply passes to the survivor. The main benefit of this is that it makes the Probate process extremely simple and therefore limits potential Executorship costs.

The drawback of this situation is that because neither party has ownership of a defined portion of the house, the value of it cannot feature as a gift in their Will or as an Estate Planning tool (e.g. to save inheritance tax).

By changing to Tenants in Common (TiC) each person would own a separate portion of the property (usually 50%). This then means that when it comes to writing a Will they can stipulate exactly what happens to their own portion of the property. This is especially important when it comes to inheritance tax planning or simply preserving your portion of the Estate for your children.

Owning your house as TiC is also beneficial should Long Term Care be required or should one or other spouse be sued. In these instances only their portion of the value of the house can be taken into account.

Beryl Sweeney wants to know if a married couple with children die intestate, is their estate liable to a claim from any other members of the family? In other words does it matter if a married couple don't bother to make a will?

Yes! If you don't bother to make a Will, then your assets will be distributed according to laws which were made in 1925 ! I'm not sure if there are too many of us who would want their Estate distributed according to 80 year old laws. If a married couple with children don't make a Will, first of all the local authority will decide who looks after their children if they die, and I am sure there are not many people who would want that to happen.

If that isn't the case, and only one person were to die, then the survivor would receive 125,000 plus the Life Interest in half of the remaining Estate. What that means is that they don't have full control over the money they used to have full control of prior to their partner's death.

It's fair to say that most of us would want our spouse to have full control of all of our assets on our death, so it is far, far better to make a Will now for at relatively little expense, than go to the heartache of having to deal with an intestate death.

Sandy Grinham asks at what stage should one arrange for Power of Attorney and who should keep the document?

Most of our Clients will take out a Power of Attorney when they make their Will. It is worth noting that a Power of Attorney, once you have signed it and had it witnessed, can be put into force at any time.

This is unless restrictions have been included which limit the attorney's powers e.g. they can only act when you have become mentally incapable ; they can only act in relation to certain assets.

As with Wills we would recommend strongly that Clients store these types of documents securely.

Ms Wragg wants to know if there's a system for checking a will company?

There is a system for checking a Will company, and that is to make contact with The Society of Will Writers in the first instance. They will be able to tell you if it is a bona fide company, and then what you should do is check the company out for yourself

Make a phone call to them, have a look at their website, see how long they have been in business for. Speak to their Head Office and try to talk to a local representative before deciding upon what you want to do. It really is as simple as that.

Mrs Sharp recalls hearing that the wills of deceased people are available for public viewing. Is this correct and if so, how do you go about it?

Yes, it is correct, as soon as a Will has been given a Grant of Probate, it becomes a matter of public record and a copy is held for viewing at the local probate office. A nominal fee may be payable.

Colin has a standard joint current bank account (either or survivor) with an elderly relative for their convenience and in case of possible emergencies. It is not his money but they felt it was a good idea to set this up whilst the elderly relative is still fit and well. Assuming the relative dies first, what happens to the money and what are the tax implications?

As the account has been set up as a joint bank account, the money would pass to Colin under rules of survivorship, as they both owned 100% of it jointly.

This throws up a couple of potentially messy problems from a tax perspective on the death of the elderly relative.

Firstly, it could be construed that the relative has made a cash gift to Colin, and therefore would be classified by the taxman as a potentially exempt transfer, on which Colin is liable to pay Inheritance Tax should death have happened within the first 7 years of the gift being made.

Although it is difficult to comment in detail without knowing the full situation we do not ordinarily recommend that clients take this course of action with regard to their day-to-day finances. A much less complicated solution from a tax perspective would be to put an EPA in place giving Colin control over the relevant account.

Ben Andrews asks if it's possible to contest or challenge the wording of a Will after it has gone to probate? He is concerned about a case where a substantial gift has been made with certain conditions attached, which have not been met by the beneficiary.

Yes you can challenge a gift made by and Executor if a gift carried conditions, which have not been enforced as long as these conditions were reasonable. If an Executor is unsure about the nature of conditions attached to a gift they should always check with the Probate Court - if this has not been done and the conditions should have been adhered to then the Executor may become liable themselves for incorrectly administering the Estate.

The opinions expressed are David's, not those of Working Lunch. The answers are not intended to be definitive and should be used for guidance only. Always seek professional advice for your own particular situation.

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