Your Money: Hows and whys of a will - Queries poured in from readers about writing wills. Barrister Gillian Jenkins replies to a sample of them
Sunday 23 October 1994
But if I die in my seventies or eighties, the significant people in my life will probably have changed. Does this mean I should redraft my will every five years or so as new people become important to me? Or are there any short cuts?
I would like to draw up quite a detailed will, leaving certain possessions to specific people. But what happens, for example, if an item allocated has been lost or broken?
A: As a general rule, you make a will for today or for what you could reasonably forsee might happen if you were to die in the next five to 10 years. As you point out, it is impossible to predict what circumstances might be in 30 to 40 years' time. I think the best advice is to draw up a will to reflect your wishes now and review this every five to 10 years, or when circumstances change.
Leaving a detailed will does not present a problem, but do ensure that specific possessions are adequately described to avoid any misunderstanding.
If you leave an item to a specific person and you no longer have that item at your death then that person will receive nothing; they would not receive money instead. If the item is broken, it would still pass to the beneficiary. I am not aware of any duty on the executors to mend broken items.
Q: My wife and I made our wills using the Which? publications and proformae.
We are executors of each other's wills but in the event of our joint demise we wanted to leave as simple a state of affairs as possible for our sons, as executors. Family relationships are such that we are perfectly happy to leave our two married sons to carry out our wishes without us having to spell out the details.
Accordingly, we have left very simple wills which merely state: 'I leave everything I own to my wife, but if she dies before me or does not survive me by 30 days, my executors are to dispose of my estate as they see fit.'
Our wishes, which will include charitable donations, are listed in percentage terms in a separate (non-legal) document accompanying the wills for executors' guidance. The Inland Revenue has assured me that for charitable donations to be free of Inheritance Tax we do not have to nominate the donations in the wills but can leave the decisions to the executors. We would like your assurance that the wording 'as they see fit' does carry legal clout.
A: I would strongly suggest that you and your wife try to decide exactly where your estate is to go after your deaths. The fact that you have not specified the destination of your estate will not simplify obtaining probate.
The risk that you run by not making a specific will is that the executors may distribute the estate as they wish. As you rightly point out, the separate memorandum that you have drafted for guidance has no legal effect on your executors, and while family relations are harmonious now, this may not be the case in years to come (sorry to sound cynical), in which case your wills as drafted could give rise to family disagreements.
Having said all this, there are circumstances where you may wish to give your executors an overriding power over your estate - usually where you wish them to be able, within, say, two years of your deaths, to be able to distribute the estate in the most tax-efficient way. But against this has to be balanced the risk that the executors can 'make' the testator's will in any way they see fit. I feel you should take legal advice.
Q: I am newly divorced with care of my two children. My will names my ex-husband as an executor and leaves him a small bequest. Is this will still valid? Can he challenge the naming of my brother and sister-in-law as guardians? I also noticed that the will refers to my old home - which is left to my children. What would happen now I have moved to another house?
A: Your will is valid, ie divorce does not revoke the will itself. However, where there is an appointment of a former spouse as executor, the will will take effect as if the appointment of this former spouse were omitted. So if he is your sole executor, you should appoint a new executor by will or codicil.
The gift to your ex-husband will lapse. It will then fall into the residue, and if there are no further instructions could pass under the intestacy rules. As far as your ex-husband as guardian of your minor children goes, he will be guardian of your children. But you can, under the Guardianship of Minors Act, appoint other guardians to act jointly with your ex-husband. It may be that your ex-husband would be happy for your children to live with your brother and sister-in-law (and they can act as joint guardians) and that he only be involved as a visiting parent but taking part in any major decisions relating to your children. But your ex-husband could object to the appointment of joint guardians.
If your will leaves a specific property to your children, rather than, say, leaving any property that you own at the date of your death to them, and you now no longer own the property so specified, you should alter your will. As a general rule, where you are going to make several alterations to your will (as you will need to do), you would be better to have a new will drafted - although, strictly speaking, your will has not been revoked by divorce.
Q: My parents divorced when I was 10 years old. My two sisters and I were brought up solely by my mother. We have had almost no contact with my father over the last 20-odd years, and he has made no financial contribution to our upbringing. If I were to die without a will, would he have equal claim to my estate as my mother?
A: If you die intestate, and you have no spouse or children or grandchildren, then your parents will inherit your estate absolutely in equal shares. The fact that your parents are divorced does not alter this fact - and so, if you do not wish your father to inherit, I suggest you make a will to reflect your actual wishes.
Q: What is the position of each of the 'joint tenants' in the event that anyone dies, with respect to a jointly owned property, and does a will make a difference? I believe I am a joint tenant of a house, along with my mother and sister.
If I die and am survived by my mother and sister, they become joint tenants, of course. Can I leave my joint tenancy to my wife and/or children by a will, or do I first need to change the ownership to 'tenants in common'? If this is the case, what can be done if my sister refuses to co-operate?
A: Where you own a property as joint tenants, on your death your interest will pass automatically to the surviving joint tenants. It cannot pass under the terms of your will to, say, your wife or children, and if you died intestate it would not pass to your personal representatives.
If you wish to pass your share to your wife/children, you need to sever the joint tenancy and become tenants in common of the property. You can do this by serving a notice on the other joint tenants.
Q: My wife and I are old age pensioners, aged 78 and 87, respectively. We have only the State Old Age Pension and also receive Income Support and Attendance Allowance. Our only asset is our small house, which is worth about pounds 50,000. We have made a will leaving this house firstly to each other and, finally, to be divided between our three children.
However, we have heard that if one of us has to go into residential care, the cost of this will be deducted from the sum the house raises after the death of the remaining partner, assuming he/she dies at home.
We would like to know if there is any way we could avoid this situation?
A: Several readers have written in with queries regarding the sale of the family home if either or both spouses have to go into residential care, and whether by giving or willing the property away this will obviate the problem of the local authority taking the value of the house to set against the costs of care.
Once a client (as they are now called) has been assessed as needing care, the local authority has a legal obligation to provide care and will assess the client's ability to pay the standard charge. Financial support may only be available to those with capital below pounds 8,000.
Property will be treated as capital and if you apply for local authority support the authority has power to levy a charge against unsold property of the client for the cost of care. This charge will be settled when the property is eventually sold.
Property is disregarded if it remains occupied by the client's spouse or partner and, in exceptional circumstances, if it is the sole residence of someone who has given up their own home to care for the client.
If the local authority considers that a client has disposed of capital to avoid accommodation charges, it can treat the client as if they have notional capital and can recover the cost either from the client or, if the transfer of capital took place within the previous six months, from the person to whom the capital was transferred.
Q: I am 64 years of age with two thirty-something children and two grandchildren. I have around pounds 50,000 in cash and shares and a house worth around pounds 200,000 (no mortgage). I am divorced and my ex- wife has long since re-married.
I would like to reduce inheritance tax liability by leaving my children and grandchildren some pounds 150,000 and four or five charities around pounds 50,000 in total. However, should the house be worth less than its current value, how would I word the will to ensure that my children still receive the pounds 150,000 and the charities share equally the balance - up to pounds 50,000?
A: You could word your will to state that your children and grandchildren should receive either the net proceeds of the sale of any real property you own at the date of your death or a sum equivalent to the nil-rate sum (currently pounds 150,000), ie, the maximum that may be transferred at death without inheritance tax becoming payable in equal shares (you need to indicate if your grandchildren's share has to be held in trust if they are under 18), whichever is the greater. You could then indicate that the balance of your estate should pass to the charities you nominate.
Q: In 1978 my wife and I made wills leaving all our property to each other and, after the survivor's death, the property is to pass on to our three sons. Since then the value of our estate has increased. The value of our house is estimated to be pounds 150,000 and each of us has a PEP, Tessa account and various bonds worth about pounds 75,000. Would it be most tax-efficient for my wife and I to nominate all our three sons as executors and leave to the surviving spouse 50 per cent of the value of the house, the other 50 per cent going in equal shares to our sons? After the death of the survivor, the rest of the estate will go to the sons.
A: Whether you name your sons as executors has no bearing on the tax implications for your estate. If you and your wife wish to have the option to leave half the house to your sons on the death of the first spouse, then you need to register your property as tenants in common, if you currently hold the property as joint tenants.
You then need to take advice from your solicitor as to whether it is sensible to leave half the house to your sons outright - bearing in mind that once they have an interest in the property, that property forms part of their assets and if, for example, they were to divorce or go bankrupt then it is possible the house may have to be sold to satisfy a claim.
It may be better to consider putting half the property into a discretionary trust on the first death to avoid the above problem, but you need detailed advice on this point. Always remember that a will takes effect from the date of death, not the date it is signed, and any tax saving scheme should be kept under review in the light of changes to tax legislation.
Gillian Jenkins is a barrister who runs a will writing service, charging pounds 65 and pounds 85 for a couple. For information about the service call 081-876 0314.
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