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Wills and probate – frequently asked questions

Unless your existing Will was specifically stated to having been made in contemplation of your marriage/registration then it will be automatically revoked by the marriage/registration

Not necessarily – the Rules of Intestacy say that the surviving spouse/civil partner only takes £250,000.00 of free estate if you leave children and £450,000.00 of free estate if you leave parents or siblings – if you own a property in your sole name these limits can soon be achieved and you will leave your spouse/civil partner in a mess.

Make a Will that leaves your son’s “share” of the estate on a discretionary trust so that he has no right to demand the monies.  You can always change your Will once the divorce is sorted.

Change your Will to place your son’s “share” into a discretionary trust – because he does not have a right to demand the monies from the Trust then they cannot be taken into account in respect of his benefits.

This is only relevant if one of you dies and the survivor of you is living alone and has to go into a home.  Basically, you and your husband should each make Wills which say that when the first of you dies you give your half share of your house to your children subject to the survivor of you having the right to live in the whole of the house for the rest of his or her life.  This means that if the survivor of you needs to go into a home then only half of the value of the house is available for nursing home fees.

Note that if one of you needs to go into a home but the other remains living in your house then your house is disregarded.

Invariably not the case – your Will nominates who you want to be as your Executors but they actually have to apply for a Grant of Probate to be formally appointed Executors.  The only time Wills do not have to go to Probate is if your estate is very small (under £15,000.00) or if all your assets are joint with the surviving spouse/civil partner

Not so as long you have a Bank account, Building Society account or National Savings which have sufficient money to pay inheritance tax and funeral fees.  The institution will write a cheque to pay your funeral account and inheritance tax before Probate is granted.

Not so – if your estate is under £325,000.00 then the papers can be drawn on best estimates of valuations and can be obtained very quickly.

A Power of Attorney takes nothing away from you and if you leave it until you are unable to manage your affairs then it is invariably too late to make a Power of Attorney as you do need full mental capacity to execute the document.  It is therefore advisable to make a Power of Attorney whilst you are mentally and physically able to do so.

No – you can give away whatever you like however if you die within 7 years of making the gift then the first £3,000.00 is ignored and the value of the balance of the gift is added back to your estate for inheritance tax purposes.

Not so if you remain living in your home – this is a gift with reservation of benefit and the 7 year rule does not apply.  The whole value of your home as at the date of your death will be added back to your estate when you die for inheritance tax purposes.

Equity Release – releasing capital from your home is not the taboo it used to be so long as you choose a reputable company which is Safe Home Income Plan (S.H.I.P.) registered – this means the company is regulated and must present all the facts in an open and transparent way.  In your circumstances, this could be just what the doctor ordered.