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Consuming Issues Friday, 21 March, 2003, 12:23 GMT
Will power
Adam Shaw and David McMaster
Adam puts your queries to David McMaster
David McMaster of Just Wills answers your questions about wills and inheritance issues.

Mr Cooper-Brown has had a bad experience with will writers.

His friends contacted a company that were advertised in the local paper. They charged him £300 to write the will, then, after his death, the firm charged another £300 to cover "expenses" in dealing with probate. It now transpires that the will is actually invalid because it wasn't written correctly!

What should you look for when choosing a will writing service?

It would appear that Mr Cooper-Brown and his friends have fallen foul of the unscrupulous end of the will writing profession.

Certainly, £300 sounds like an awful lot to pay for a simple single will - probably three or four times too much, depending upon the complexity.

When looking for a company choose one which has been established for some time and is a member of The Society of Will Writers.

Will writing is self-regulated, the Society being the largest regulatory body, covering 2,000 members.

They have a strict code of conduct which covers many aspects, including getting a written quotation ahead of having the will written, the timescale for the document, confidentiality etc.

You should also ensure that the company carries sufficient professional indemnity cover. Up to £2m per will is not uncommon.

As for the "probate" admin fee, that's outrageous! Fees such as this would ordinarily be paid for from the deceased's estate once it had been wound up.

Either you can do this yourself or you can ask a professional, trust corporation or solicitor, to act on your behalf.

Sadly, all professions are dogged by the unscrupulous and I have to say that some of the advertising going on at the moment is a long way from believable.

A will (via a home visit) for £19.95 is most unlikely to happen, yet there are many of these adverts being carried in the broadsheets.

There are also many complaints about them; ultimately you get what you pay for.

Laurie Browne's father died last November and his estate was valued at that date at just above the Inheritance Tax threshold level of £250,000.

This was a bit of surprise for her and her brother as they did not think he had that much invested.

Anyway the tax has been paid and the will is now being settled, but they find that due to the stock market collapse, his shares and investments are worth much less now and that IHT would probably not have applied had he died now.

Is this not a very unfair tax and is there anything Laurie and her brother can do to alleviate this most unfortunate set of circumstances?

Yes, there is. If you sell the shares up to one year after the tax has been paid and the value has gone down, you can reclaim the tax paid from the Revenue by using form IHT 35.

You have to sell the shares though. They won't accept the fall in value in isolation; a loss is not a loss until it has been crystallised.

The same principle applies to houses, although you have four years from the date of death to instigate a claim for a fall in property prices.

Gerd Gjersen from South Yorkshire wants to know about power of attorney.

She's fit and well at 81 but wonders when she should arrange power of attorney for her son; should she do it know or when she's no longer able to look after herself?

Do it now, because it is designed to come into operation when she can't look after herself.

A power of attorney gives someone else power over your affairs. It doesn't operate until it is lodged with the court of protection but it must have been written when you are capable of understanding what you are doing.

Mrs Tucker from Taunton has a question about her late husband's investment and probate.

It took a while for grant of probate to arrive (four months after his death) and in this time the value of his investment fell significantly.

Why is it necessary for the investment company to wait for probate and not accept a death certificate as adequate notice?

She did not have the choice of transferring the Pep to her name, which some other policies offer.

This ties in with the will, distribution of the estate and payment of taxes.

The investment company want to make sure that they are paying the money to the right person.

That person, legally, is the executor of your will (also known as your personal representative).

In order to prove that, you need a grant of probate. This document gives the investment company the safety of knowing that once they pay the money to the executor they will not have to pay it to anyone else, as the executor undertakes the responsibility of distribution of the estate.

Ian Silverberg from Greater Manchester says his parents are reluctant to make a will. What can he say to persuade them?

The short answer is do they want to pass on their assets or do they want the Crown to decide where those assets are passed?

They may be following the Robert Morley school of thought - as he famously said: "Always leave your affairs in a mess, dear boy. It stops them grieving!"

The laws of intestacy are archaic, and depend on:

  • if you're married
  • if you have children
  • which other relatives are still living.

    For more detailed information on intestacy, look at the Just Wills website.

    Catherine Mellers is a trustee and wishes to place funds in a savings account but fears that some savings Institutions limit the accounts available to trustees.

    Please advise where she can put the funds and obtain the best rates of interest?

    This shouldn¿t be a problem as most accounts can be accessed by trustees.

    Kingsley Dahanayake asks what the financial implications of "living wills" are.

    Living wills are not yet legally binding. They are directives which tell your medical advisers how much pain and suffering you wish to go through or at what point you would want your life support system turned off if you are badly injured or in a coma.

    You need to read the small print. Most insurance policies will have a suicide clause or one which refers to not taking medical advice. Under these circumstances they wouldn't pay out.

    However, many policies these days include terminal illness benefit, which is paid out prior to death when a living will would kick in.

    Ernest Williamson from Essex understands that trust wills can be set up to ensure Inheritance Tax is minimised.

    Some advice, please, on how to go about this.

    You need to set up a Discretionary Will Trust, split your assets between yourself and your wife, and ensure that assets up to the value of the nil rate band (currently £250,000) are passed into the Discretionary Trust.

    Because this is discretionary, the surviving spouse has got access to the assets and therefore you have utilized two nil rate bands instead of one, saving £100,000 in Inheritance Tax.

    Alan Marnes and his wife are in the process of writing their wills. They want to create trusts for their children to lessen the impact of death duty, but wish to retain control over that property until they both die.

    They know there are ways of doing this but are unable to find the correct words that satisfy the probate or death duty laws.

    You are trying to achieve two quite different objectives:

  • minimizing Inheritance Tax
  • preserving your estate for the benefit of others.

    You really need to take some professional financial advice in order to decide which of those objectives is your primary one and then see what can be done to help the other one.

    The estate preservation and Inheritance Tax planning can sometimes go hand in hand.

    However, when you want to retain control over your assets, you are reducing your Inheritance Tax alternatives.

    Giving assets away (the simplest way of reducing the value of your estate) is an easy step towards Inheritance Tax planning.

    But you must remember not to retain control over anything you gift.

    John Roycroft is making a will bequeathing his specialist library to his alma mater - Trinity College, Dublin.

    He's been advised that the college will accept the bequest and will assist with the transfer of the collection from London to Dublin when the occasion arises.

    "To make it easy for my executor, and to reduce potential liability for UK Inheritance Tax, I wish to ensure that the bequest is charitable and will be accepted as such by the UK's Inland Revenue," he writes.

    No problem, as long as the people you are leaving it to are a registered charity.

    You could leave it either during your lifetime or as a gift via your will.

    If you want to be acknowledged as a donor during your lifetime, why not give it to them.

    For information on making donations, go to www.rememberacharity.org.uk or call 0808 180 2080.

    Dave Hall has just become a pensioner and his wife will be 60 at the end of this year. They have two children in their 20s.

    Their current combined will just leaves everything to each other. The house is solely in Dave's name, is fully paid for and is worth about £180,000.

    "The value of the house and other savings put our worth at about £320,000. To make sure we stay under the Inheritance Tax limit of £250,000, do they need to make new and separate wills each leaving our separate halves of our worth to our children?" they ask.

    Firstly, you need to change the ownership of your house into tenants in common.

    This means that you each own half, and as a result of this you can leave that portion to someone else.

    However, if you try to do this and let the survivor continue to live in it you will have preserved your estate, and it will not be effective from an Inheritance Tax perspective.

    The use of a new type of Discretionary Will Trust (called the IOU Discretionary Will Trust) would help.

    You need to seek the advice of a professional will writer or solicitor for one of these.

    Watch out for banana skins - the wrong type of trust wording won't work.

    Ian Jackson from Merseyside says his mum drew up a will more than 20 years ago. It's being kept by her solicitor.

    If she does another one using a PC software program and prints it out and gets it witnessed, does it legally overwrite the old one kept by the solicitor?

    Yes, he just needs to make sure she gets it properly witnessed and dated.

    DJ Thorp has reluctantly agreed to be executor of a will, for a couple who do not want to involve solicitors.

    What, briefly, are his duties (there is no house to sell - just goods and small investments to be divided equally between the two parties)?

    I can understand why the word "reluctant" has crept in here, as there are loads of different things for the executor to do.

    The duties are:

  • registration of death and organising the funeral
  • application for probate
  • "calling in" (identifying and securing) of all assets
  • distribution of the estate
  • collation of the information in order to ascertain interests, values and liabilities of the deceased (including tax liabilities etc)
  • investigating and resolving all outstanding aspects of the estate
  • complying with all legal and fiscal requirements
  • negotiation of valuations for all assets, such as property and shares
  • administration of assets (sale or transfer of property, shares, bank/savings accounts)
  • payment of all outstanding bills
  • preparation and submission of accounts.

    M Hicks from Somerset asks if he can make his own will and if so, will it be legal? Are there any pitfalls in making your own will?

    The short answer is yes, he can make his own will. And it can be legal.

    However, there are those dreaded banana skins everywhere!

    To be legally binding it needs to be witnessed by two people of sound mind who are not blood relations and not beneficiaries of the will.

    He needs to beware of ambiguity, proper descriptions of items and what would happen if they people he is leaving it to die first.

    The shortest will on record said simply: "I leave everything to my wife."

    You can buy will forms in stationers or you can look on the internet for a will writing professional.

    But go to your bank or ask your solicitor just to make sure you get some advice rather than doing it yourself.

    Carol has a 25-year-old son who is in work and still living at home in Scotland. He has some money in a cash Isa, but also has an outstanding student loan.

    He has not made a will. What would be the legal position if he were to die intestate?

    The student loan would be written off on death. If he dies intestate then his assets (the cash Isa) would be passed according to the Scottish laws of intestacy, which are different to the English and Welsh ones.

    However, assuming that Carol's son has no other brothers or sisters, sons or daughters, the cash would pass to her.

    Carlton Hobbs from Dorset says that for a variety of reasons both rational and emotional, the majority of his assets are held jointly with his wife.

    He is about to rewrite his will, and asks if he can leave his share in some or all of their jointly held assets to his children?

    The answer to this one depends upon how these assets are jointly held.

    They can be held either as joint tenants or tenants in common. If it is a bank account it is most likely to be joint tenants.

    If it is joint tenants, then upon one person's death ownership passes immediately under the laws to the other person. Therefore you can't leave anything from that pot to your children.

    You need to ensure that your assets are held as tenants in common so that each has an estate to pass on.

    Kevin Harvey and his girlfriend are living together and jointly own a property in London and have also just brought a property in Spain.

    They have no will in place currently but would like to get this sorted. Do they require a will in this country and in Spain? If so can you point them in the right direction of where best to start and the approximate costings?

    Firstly they need to make a will to take account of the UK property and their UK assets.

    They definitely need one to take account of the Spanish property in order to avoid time-consuming and expensive legal problems for their heirs.

    They can make a separate will disposing of their Spanish assets and in order to do that they should talk to a solicitor in Spain.

    Spanish inheritance taxes are very different to UK ones; the amount is much lower.

    Finally, they should ensure that the UK will recognises the existence of a Spanish will and vice versa, as the normal way of writing a will revokes all previous wills.


    The opinions expressed are David'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.
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