FAQ - Probate, Wills & Power of Attorney - Woolliscrofts Solicitors

Frequently Asked Questions

Who can make a Will?

Every adult can and should make a Will. You need to be of legal age, which is 18 in England and Wales and 12 in Scotland. You must also be over the age of 18 in Northern Ireland, although there are exceptions if you are under 18 and married or you have been married.

You must also be of sound mind – understanding what you are giving away, how you are giving it away, and who you are giving it to. If you have a history of mental disorder or if an illness may be affecting your judgment in any way, consult a qualified doctor before writing your Will. This helps establish your competence and will be useful should your Will be contested later on the grounds of mental incapacity.
How long is a Will valid for?
A Will is valid until revoked, which can happen in a number of ways:

By destroying it, combined with your intention to cancel it. Physically destroying your Will usually revokes it. Accidental destruction of a Will doesn’t cancel it but there might be difficulty in proving that it applies. A Will can be destroyed by another person, but it must be at the request of the testator.
A Will must be physically destroyed – simply crossing out the Will or writing ‘revoked’ across may not be sufficient. Rubbing out or cutting off the signature of the testator or witnesses may be enough to revoke the Will. If part of a Will is destroyed, only that part of the Will is revoked.

If an entire Will is to be revoked, any codicils attached to it may have to be revoked separately. If a Will is known to have been kept in your possession, but can’t be found when you die, it will be presumed that it was destroyed by you unless there is proof that that wasn’t what you intended.

By making a new Will that revokes your old Will. To make sure of this, the Will forms in our books and kits contain the phrase, ‘I revoke all previous Wills and codicils’. This gives you the opportunity to reconsider all of the terms of the old Will and make all the changes at one time rather than separately using codicils. Be sure your new Will complies with all the requirements necessary to make a valid Will. If you don’t destroy your old Will, it might come back into force if your new one is revoked.

In England and Wales (but not in Scotland) by marriage unless your Will states that it is made with your forthcoming marriage in mind. Your Will is automatically revoked by marriage unless:

you were planning to marry when your Will was made;

your Will names the specific person you married;

you state that you want the Will to be effective during your marriage to that person.

In Scotland by the birth of a child if the Will doesn’t provide for the child and you haven’t shown your intention that the Will not be cancelled.

Except for the situations just mentioned, a Will remains valid for an unlimited period of time. Note that divorce doesn’t automatically revoke your Will.
What should I include when making my Will?

Obviously, you should include exactly who will inherit your property, and what in particular each person will inherit. Just as importantly, you should choose the person who will be responsible for carrying out your wishes and who will act as a guardian to your children if they have no other parent.

You can also use your Will to say whether you would prefer burial or cremation and if you would like to be an organ donor. Lastly, you might be able use it to reduce the amount of tax to be paid by people inheriting from you.
What happens if I die without making a Will?

If you die without making a Will, or if your Will is invalid, you die intestate. The management of your estate, which is your house (if you have one) and any other assets minus all your debts, is then done by administrators (called ‘executors-dative’ in Scotland) appointed by the court, who will probably be your close relatives..

In some cases, your possessions may go to the Crown, but generally the bulk will go to your spouse or if you don’t have one, your children. If you have no children, other blood relatives are next in line. One in two people in the UK currently dies without making a Will and if you haven’t done so already, it’s a really good idea to prepare one.

In Scotland, the rules of intestacy allow your spouse and dependants to claim your property and money regardless of your wishes. If no surviving relatives can be found, your entire estate goes to the Crown.
How many witnesses do I need for my Will?

In England & Wales, you need two witnesses over the age of 18 to witness your signature and to sign your Will; in Scotland, you need only one witness over the age of 16. The spouse of a testator (person making a Will) cannot witness a Will, nor can beneficiaries of the Will (or their spouses).
Can my executor witness my Will?
Can an executor be a beneficiary of my Will?
I don't know anyone who I can ask to be the executor of my Will. Can I do it myself?
When I complete my DIY Will, do I need to take it to a court to have it witnessed and made legal?

No, you don’t need to take your Will to a court. It can be witnessed by friends or anybody else you trust and it’s perfectly legal. The only people who shouldn’t be witnesses are the beneficiaries of the Will – witnesses can’t inherit anything from a Will they are witnessing.
I have recently made my Will and am in a bit of a dilemma about where to keep it. Is it OK to store it at home or should I use a solicitor?

You can store it at home but you should consider the following points. A Will can be easily lost, as sometimes happens when people move house, for example. There is also the added question of security; do you want other members of your family to have access to your Will?

It is safest to lodge your Will with a solicitor,
I already have a Will but I want to change it, should I just add the changes to the Will I've made?

No. You shouldn’t change your Will by altering one you’ve already made. The best way to do it is to prepare a new Will, and include the fact that all previous versions are cancelled. It’s actually a good idea to destroy all the copies of your old Will, just to make sure, once you have completed the new version.
My spouse already has a Will. Should I make one too?

Yes. Both you and your spouse should make Wills, even if most of your property is in one person’s name. This will allow you to name your spouse as the person who will benefit from your property if you die, and you can decide where your property should go if your spouse dies before you.
My partner and I are unmarried and living together. Should I make a Will including him?
What is a Living Will (Scotland)?

A Living Will/Advance Medical Directive (Scotland) is an advance declaration of your wishes about medical treatments which you could be given for any future illness, which you may not be able to communicate yourself at the relevant time because of physical or mental incapacity.

With a Living Will, only refusals of medical treatments or procedures will be binding on medical staff. Requests for special treatments (other than pain management and basic nursing) may have persuasive force, but doctors will not have to follow your instructions.

You can also appoint someone whom doctors may consult on health care matters for you; this person is referred to as a Health Care Proxy. You should discuss the options in this Living Will with your family and doctor before completing it.
What is the difference between an Advance Medical Decision and a Lasting Power of Attorney Personal Welfare?
A Lasting Power of Attorney Personal Welfare is a means for you to confer upon the Attorney the authority to make decisions about your personal welfare or specified matters concerning your welfare. Those decisions include the giving or refusing of consent to treatments which you might wish to include in an Advance Decision.

If you create a Lasting Power of Attorney Personal Welfare after an Advance Decision and the Lasting Power of Attorney Personal Welfare covers the same treatment as the Advance Decision, the Advance Decision will cease to be valid.

If you make an Advance Decision after a Lasting Power of Attorney Personal Welfare and the Advance Decision covers the same treatment as the Lasting Power of Attorney Personal Welfare, the Attorney of the Lasting Power of Attorney Personal Welfare cannot consent on your behalf to that treatment.

If the creation of a Lasting Power of Attorney Personal Welfare has revoked the Advance Decision, the Advance Decision may nevertheless be regarded as an expression of your wishes and so taken into account when considering your ‘best interests’.
What is the difference between a Living Will/Advance Decision and an ordinary Will?

A Living Will/Advance Decision is only concerned with medical treatment when you are still alive. You cannot use it to communicate your wishes on any matters normally dealt with by an ordinary Will, or Last Will & Testament. In other words, you cannot use it to determine who will inherit your property when you die, who will be your executors, or who will be guardians to your children.
What is probate?
I am acting as an executor for someone who died recently and I find the inheritance tax issues complicated. How do I calculate the tax due?

Up to a certain value, the estate is exempt from inheritance tax, but once you reach that threshold, there are quite considerable amounts of tax to be paid. The rates to be paid vary from time to time but you can find the latest figures at the HM Revenue & Custom’s website.

You can calculate the tax yourself by working through the HM Revenue & Custom’s worksheet IHT/WS and completing forms IHT 200 and D18.

If you are finding the whole thing too much, then hand the tax calculation problem over to your local Capital Taxes Office and they will work it out for you.
What happens to someone's Income Tax affairs when they die?

When someone dies, they are entitled to their normal full year’s worth of allowances. A tax return will need to be completed for the last period of their life from 6 April up to the date of their death and the tax will have to be worked out accordingly.

Income arising after death is treated as the income of the estate and becomes the responsibility of the trustees or executors. When the estate is distributed, both the capital and the income that has arisen since the date of death will be distributed according to the Will to the various beneficiaries and tax will be deducted from any income that has been received at the appropriate rate.

If you as a beneficiary receive income that’s been credited to a deceased person’s estate, then you will receive that income net of the appropriate rate tax and while you may have to pay higher rate tax on the income, there’s also a chance that you might be able to claim some back or for there to be no adjustment at all.
I'm an executor to my father's estate; how do I go about getting authority over his affairs in Scotland?

As executor, you have the power to deal with your father’s assets from the date of his death. However, it’s not until you receive a ‘Confirmation’ in Scotland that you can prove your authority to those institutions and authorities that hold assets in your father’s name.

Application for Confirmation is made to The Sheriff Clerk of the Sheriff Court in the area in which the deceased had been domiciled at his death. A list of Sheriff Courts is available online at www.scotcourts.gov.uk or by calling the Scottish Courts Service on 0131 229 9200. The grant of Confirmation is proof to the public that the executors can realise the deceased’s estate, collect from the deceased’s debtors and distribute the assets, as determined by the Will.

The executors can now send the Confirmation, or a Certificate of Confirmation, to all parties concerned, requesting whatever money is due to the estate. This money can be deposited into the executors’ bank account from which debts of the deceased can be paid.
What is a trust?

A trust is brought into existence when a person (called the ‘settlor’) transfers some of his assets to trustees (who become the legal owners) for the benefit of third parties, called ‘beneficiaries’ (the beneficial owners). A trust is a legal entity in itself. Another word for a trust is a settlement. Sometimes trusts are created under a Will and sometimes they are created during the lifetime of the settlor. Sometimes trusts are created to save tax, sometimes to protect assets; there are many and various reasons for setting up a trust.
How are trusts in Wills affected by tax?

The main tax that affects Wills, triggered by the death of the person, is Inheritance Tax. However, when someone dies the deceased’s personal representative (PR) or executor will make sure that a personal Tax Return is completed from the start of the tax year to the date of the deceased’s death. From the date of the deceased’s death to the end of the tax year the PR will have to account for tax and report to the beneficiaries on the tax that he or she has deducted. Each year the PR will have to submit an Income Tax Return to HM Revenue & Customs. However, in the year in which the estate is wound up and all the assets have been distributed, the PR will only have to account for the tax on the income up to the date of distribution. In practice, if probate value is less than £2.5 million and the total tax due by the PR is less than £10,000, HM Revenue & Customs will accept a single computation and one-off payment.

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