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Can I Change A Will After Someone Has Died?

Changing A Will After Someone Has Died

A Deed of Variation can be used to change a Will, or alter the outcome of the rules of intestacy, after someone has died.

Why Use A Deed Of Variation?

A document that is used by the beneficiaries of an estate to redistribute assets they are due to inherit, a Deed of Variation is useful if the outcome of a Will or the rules of intestacy are seen as unfair by the beneficiaries.

There are many scenarios when a Deed of Variation is appropriate to use, including:

  • If a family member has been excluded
    For example, if a Will or the rules of intestacy results in a child or a dependent being left out who the deceased would have wanted to benefit from the estate, you might choose to redirect some of your share of the inheritance to this person.
  • Not needed
    If you don’t need your share of the inheritance but a family member does, you might choose to redirect it to them.
  • Charitable donation
    You might want to give some of your inheritance to charity.

Why Not Just Gift Your Share Yourself?

By gifting your share of inheritance through a Deed of Variation, you are able to avoid any tax implications involved by ensuring the gift is from the deceased rather than from you.

This means you don’t need to survive for 7 years after making the gift to avoid inheritance tax and capital gains tax liability on your estate when you die.

It also means you can take advantage of any available tax benefits at the time of gifting. For example, if property is redirected to a direct descendant, then the estate can use their Residence Nil Rate Band allowance if property was not previously being gifted to a direct descendant. Or if 10% of the estate is redirected to be gifted to a charity, the inheritance tax rate for the estate would decrease from 40% to 36%, which could result in big savings for the beneficiaries.

Another option is to redirect any inheritance into a trust to provide asset protection for future generations. This may also reduce tax liability for the estate.

How Can You Use A Deed Of Variation?

A beneficiary can only change the distribution of their share of the estate and not the shares of other beneficiaries.

Beneficiaries can choose to redirect their inheritance so that they all give a share of their inheritance to the individual or charity, or a beneficiary can choose to give a share of their inheritance – either way, the agreement of anyone else affected by the decision is needed for this to happen.

To use a Deed of Variation, the redistribution must be agreed by any beneficiaries who are impacted by the changes. All those affected must be over the age of 18.

The Deed of Variation needs to be signed by the Will executor or by the administrator of the estate.

When Can You Use A Deed Of Variation?

You can make a change using a Deed of Variation before or after obtaining a Grant of Probate. It must be within 2 years of the deceased’s death to take advantage of any potential tax benefits.

How We Can Help You With Your Deed Of Variation

Our specialist Wills and probate solicitors can help you when it comes to changing a Will or the outcome of the rules of intestacy after someone has passed away.

We can advise you on the appropriateness of using a Deed of Variation to redistribute assets you’re due to inherit, as well as help you in the creation of one.

With our help and guidance, you’ll be able to make any changes to the Will or outcome of intestacy to redirect your inheritance or redistribute a share of your inheritance, in the most straightforward and tax efficient way possible.

To speak to us about Deeds of Variation and changing a Will after someone has died, please contact us or email advice@bartletts.co.uk

What Happens If A Will Is Missing?

If you are the surviving spouse or relative and know that a Will has been written but you’re unable to find it, what happens next?

Bartletts Solicitors estate administrationAs a guide, you should conduct a thorough search to try to find the Will before assessing your options – depending on the outcome of your search, you might need to seek legal advice to distribute the estate according to your loved one’s wishes and ensure the rules of intestacy do not apply.

Searching For A Will

To ensure the deceased’s estate is distributed according to their wishes rather than the rules of intestacy, you need to find their original Will.

There are key places to search for the Will, including:

  • Home
    Many people keep their Will at home, often in a safe or with other important documents, so searching the deceased’s home is a good place to start.
  • Friends & Family
    Speak to friends and family members of the deceased, to see if they are storing the Will – at the very least, if it’s not with them, they might know where it is being stored.
  • Bank
    Some people store their Wills at their bank or building society so it’s a good idea to check here too.
  • Solicitors
    Many people store their original Will with their solicitor’s firm, to ensure it is kept safe. If the deceased’s local solicitors’ firm has closed, you can contact the Solicitors Regulation Authority for details of the company that took over from the firm.
  • National Will Registry
    More than 10million Wills are registered with the National Will Registry so it’s worth checking the registry.

What Happens If You Can’t Find The Original Will?

The answer to this question depends on the particular circumstances surrounding the missing Will.

The Will Was Destroyed

If the original Will cannot be found but it was believed to have last been with the deceased, the legal assumption is that the Will has been destroyed with a view to it being revoked.

When this happens, loved ones need to provide evidence to show the deceased did not intend to revoke it.

The Will Was Never Made

If the Will cannot be found and it is believed there wasn’t one in the first place, then the rules of intestacy apply.

Only The Copy Is Found

If the original Will isn’t found but a signed copy is, then loved ones can apply to the Probate Registry under Rule 54 of the Non-Contentions Probate Rules 1987, for an Order that enables them to prove the copy is legally valid.

No original or copy can be located

We always recommend that a Missing Will Search is undertaken.  There are various companies that can undertake a Will search for a fee which would be payable from the estate.  This can protect family members in the event that a Will is later found, when the estate has been dealt with previously on the basis that there was no Will. It can also be advised that Missing Will Insurance is taken out.

For this Order to be successful, relatives will need to provide evidence that the copy is the same as the original Will and that the original has been lost rather than destroyed and revoked. The Registrar will also need to be satisfied that every person who would be entitled to the estate, if there was no Will in existence (i.e. under the Rules of Intestacy) are in agreement with a copy of the Will being proved.

How We Can Help You When A Will Is Missing

When a Will can’t be found or only a copy of the Will can be found, it can be stressful for loved ones to prove that the original wasn’t revoked by the deceased and that their estate should still be distributed according to their wishes rather than the rules of intestacy.

It is a complex area of law, but our specialists have the knowledge and experience to help clients with lost Wills and estate administration. Our solicitors will provide expertise together with advice and guidance on searching for the Will and providing the necessary evidence for the Will to be deemed legally valid, to ensure the best possible outcome for you in this situation.

To speak to us about your missing Will, please contact us on 01244 311 633 or email advice@bartletts.co.uk

What Is Probate?

Probate is the legal authority to handle someone’s estate when they die – this includes organising and distributing their possessions according to the wishes expressed in their Will or to the rules of intestacy if they don’t have a Will.

Bartletts Solicitors What is ProbateA legal document, probate provides the right for an individual to distribute an estate and complete the process of probate – also referred to as estate administration.

Who Can Apply For Probate?

If there is a Will, the person named as an executor within the Will can apply for a grant of probate. If there is no Will, the closest living relative can apply for a Letters of Administration document.

What Does Probate Do?

By getting a grant of probate or Letters of Administration, the executor or personal representative is able to access the deceased’s estate. The estate includes all property and possessions.

With probate, the individual has the legal right to access the deceased’s bank account and to organise their property and possessions, ready to distribute to the beneficiaries.

How Long Does Probate Take?

The probate process varies depending on the size and complexity of the estate. For smaller and more straightforward estates, it takes between 2-4 months to get a grant of probate or Letters of Administration.

To complete the process can take several months and even years, depending on the nature of the estate.

Is Probate Always Needed?

No, probate is not normally needed for estates worth less than £5,000.

Spouses and civil partners are usually exempt from probate as jointly owned property would automatically pass to them anyway. However, probate would still be needed for any property the deceased owned in their own name or property owned as tenants in common.

To check if probate is needed, you could contact the deceased’s financial organisations such as bank or mortgage provider to ask if you can transfer assets without probate. Each organisation has its own rules on probate.

Can You Complete Probate Yourself?

Yes, you can apply for probate and handle the estate administration yourself. Or you can use a specialist probate solicitor who would ensure the process is completed efficiently and accurately.

How We Can Help You With Probate

Our specialist probate solicitors have the legal knowledge to assist you with your application for a grant of probate or Letters of Administration as well as carry out all duties for estate administration on your behalf.

Whether it is to distribute the estate according to the deceased’s Will or the rules of intestacy, our probate solicitors will help you by speeding up the process for you and providing the reassurance that everything has been done on time and with full compliance.

To speak to us about probate or administering an estate on your behalf, you can arrange a face-to-face consultation with one of our specialist solicitors in our Bartletts Solicitors Hoole office at Martins Bank Chambers, 31 Hoole Road, Chester CH2 3NF. Alternatively, you can contact us on 01244 311 633 or by email on advice@bartletts.co.uk

 

Gifting Property To Children

Gifting property to your children can be a great way to pass money onto loved ones and ensure they are provided for in the future. The process can come with the added benefit of reducing inheritance tax (IHT) implications or protecting the property from a sale at a later date to fund care home fees.

Conditional Gifts in wills Bartletts Solicitors ChesterHowever, gifting property to children needs to be carefully structured as the rules are complex and the benefits won’t automatically arise from giving away your assets.

What Should You Consider When Gifting Property To Children?

Inheritance Tax

The gifted property will only be exempt from IHT if the gift is made 7 years before you die. However, there are exceptions to this rule and HMRC won’t recognise the property as a true gift in some circumstances and will include it in your estate for IHT purposes.

Gifts With Reservation Of Benefit

To be considered a true gift, there needs to be no benefit from making the gift. If there are benefits, then HMRC will view the gift as a GROB (gift with reservation of benefit) and make it part of your estate for IHT calculations.

A key example of a GROB is when parents gift their home to their children but continue to live in the property. Transferring the legal ownership isn’t sufficient if the parents still benefit from the property by living there – it is not considered a true gift.

To be a true gift, the property needs to be transferred legally to the children and either vacated by the parents or the parents agree to pay the market rent.

Capital Gains Tax

If the property is the main home, there should be no capital gains tax to pay, but there will be CGT payable if the property is a second home or a rental property.

Stamp Duty Land Tax

If the gift is a true one, there will be no stamp duty land tax as no money would have changed hands. However, stamp duty is payable if there is a mortgage on the property or a price was paid for the property.

Care Home Fees

By gifting property to your children, you can ensure that it is not included in your estate as part of the assessment for care home fees. However, this is a complex area of law as the gift can be scrutinised by the local authority and still included in their assessment for care home fees, and needs to be handled carefully.

No Guarantees

You no longer own the property and might not have anywhere to live if your children decide you can’t stay in the property or to sell the property.

Bankruptcy

If your children are declared bankrupt after you gifted the property, you might lose the ability to live in the property as it could be sold as a result of the bankruptcy.

Divorce

If one of your children goes through divorce proceedings after you gifted the property, the property becomes an asset in the divorce settlement, and you might not be able to continue living in the property. You may also lose the ability to keep the house within the family depending on the outcome of the divorce proceedings.

Legally Binding

Unlike a Will which can be changed and updated according to your circumstances, a gift is binding, and you can’t reverse any gifts that you make.

Early Death

If your children die before you do, the gifted property becomes part of their estate and will pass according to their Will or the rules of intestacy. The property could pass to someone you don’t wish to benefit.

How We Can Help You With Gifting Property To Your Children

Our specialist Wills, probate and trusts solicitors have the expert knowledge and extensive experience of helping clients structure property gifts in the most effective way possible – one that results in the best possible benefits for their individual circumstances.

Estate planning is complex and we will help you to plan for your future, including gifting property to your children in the right way for your situation. By ensuring that you consider every aspect and implication of gifting property, you will be able to choose the best option for you and your loved ones when it comes to passing wealth on to loved ones.

To speak to us about gifting property to your children or any aspect of estate planning, please contact us on 01244 311 633 or email advice@bartletts.co.uk or complete a Free Online Enquiry and we will soon be in touch.

 

 

Why Put A Condition On A Gift In Your Will?

Conditional Gifts In Wills

Making a Will is a big and vital thing to do – after all, choosing how to distribute your estate, everything you own, is hugely important.

Conditional Gifts in wills Bartletts Solicitors ChesterDeciding who will inherit, how much and what exactly, are difficult decisions to make. These decisions are made all the harder if you have any concerns about a beneficiary.

Why Put A Condition On A Gift In Your Will?

There are a number of different reasons for putting conditions on gifts in a Will, which may include:

  • Family relations
  • The age of the beneficiary
  • The circumstances of the beneficiary
  • Second marriages

Individuals usually use conditional gifts to keep control over their assets after they die, to allow for greater flexibility over when and how a beneficiary receives their inheritance.

Examples Of Conditional Gifts

Examples of conditional gifts include:

  • Putting a condition on the money left to a beneficiary that they can only receive the money once they turn 18 or 21 or a stated age
  • Putting a condition on an asset left to a grandchild that they graduate from university before they receive their inheritance
  • Including a life interest trust in the Will to ensure the assets only pass once certain conditions are met – this is usually used for couples with children from previous relationships, so the assets only go to their children once the new partner dies

Should You Put A Condition On A Gift In Your Will?

With careful consideration, putting a condition on a gift gives you greater control of your assets after you die. By doing so, the asset is passed to the beneficiary according to your wishes.

However, if a conditional gift is added to your Will that is unlikely to happen then the beneficiary may end up with no inheritance. The conditional gift must be included in your Will in the clearest way to avoid any misunderstanding or complications with the administration of your estate.

Our specialist solicitors are here to help and advise you with the planning of conditional gifts and their inclusion in your Will, to make sure the conditions on a gift are appropriate, sensible and legally valid. Furthermore, we will ensure any conditional gifts in your Will fully reflect your wishes, for now and for the future.

To find out more about putting a condition on a gift in your Will or to speak to one of our specialist solicitors about your Will, contact us on 01244 311 633 or email advice@bartletts.co.uk

Alternatively, you can Make An Online Enquiry and one of our team will be in touch with you as soon as possible.

Blended Families & Wills – What’s Best?

Dealing with blended families in a Will is more complicated than some family set-ups because of the need to ensure both partners and all the children are protected and provided for in the future.

Bartletts Solicitors can help with making a Will for your blended familyWhat Is A Blended Family?

A blended family consists of a couple who’ve formed a new relationship or remarried and one or both partners have children from a previous relationship. They may then have children together at a later date.

This means that as well as looking after your partner, you will want to protect and provide for your children when you die.

Why Make A Will?

If you die without making a Will, the rules of intestacy decide who inherits your estate. With a blended family, this could result in your children or your partner’s children inheriting nothing from either estate when you or your partner dies as stepchildren are not provided for under these rules.

Which Will Should You Make?

Many couples opt for a so-called mirror Will that leaves everything to the surviving partner when one dies, with everything divided up between their children when the surviving partner dies. However, this is not always ideal for a blended family as there is no protection for your children and the surviving spouse could write a new Will when you die or remarry which would revoke the original Will, or one partner may have contributed a bigger share of the assets and want this ringfenced for their own children.

A good solution for blended families is a life interest trust as this enables you to protect the surviving partner as well as your children. With a Will trust, the surviving partner can continue to live in the home you share until they die. At this point, the house is often sold, and each share of the assets then passes to the respective children.

You can tailor your life interest trust to suit the needs of your blended family. For example, you can state that the trust ends also when the surviving partner remarries or moves into a care home as well as when the surviving partner dies.

As an extra safeguard in your Will, you can add a Declaration of Trust. This is a statement that details the amount of contribution each partner made to the purchase of the property, so that when the property is later sold, the money can be split according to the original investment amounts.

Helping To Protect Your Blended Family

Writing a Will enables you to protect your blended family and ensure loved ones inherit according to your wishes rather than the rules of intestacy when you die. By creating a life interest trust and adding a Declaration of Trust to your Will, you can ringfence your children’s share of your estate and keep it safe for them, even if your surviving partner writes a new Will after your death or remarries.

With our specialist advice and support, you can draft the perfect Will for your blended family – one that provides the right protection for your partner and children in the future and ensures you can look after your loved ones long after you’re gone.

To speak to one of our solicitors about making a Will for your blended family, please contact us at our Chester office in Hoole on 01244 311 633 or email advice@bartletts.co.uk or complete a Free Online Enquiry and we will soon be in touch.

Why Do You Need A Solicitor For Estate Administration?

Losing someone can be a sad and distressing time – and handling their affairs following their death is never easy at such a difficult time.

Probate is the process of managing a person’s estate after they die, and a probate solicitor can help ensure their wishes are carried out fully.

Why Do You Need A Solicitor For Probate?

Peace of Mind

Dealing with someone’s estate comes at a time that is naturally upsetting for those involved. Using the service of a specialist probate solicitor provides total peace of mind – not only thanks to knowing your loved one’s wishes will be fully respected and fulfilled but also from the assurance that as an executor/administrator you are carrying out your duties in the correct and most efficient way.

Help With The Whole Process

Probate can be a complex process as it includes the following:

  • Sorting personal finances, assets and property
  • Settling any outstanding debts
  • Paying any taxes owed
  • Distributing the remaining estate as inheritance to those named in the Will first or to those entitled to an estate under the Rules of Intestacy.

A solicitor will help you carry out your duties as the person responsible for distributing the estate.

As an executor, you need to apply for a Grant of Representation, a legal document that gives permission to deal with a person’s estate. Your solicitor can help you with the application and then provide assistance with handling the estate.

This includes help with making sure the right tax is paid, identifying and resolving any potential issues with the estate or inheritance, and ensuring everything is carried out legally and efficiently.

Help With Any Complexities

Just as every estate is different, the process of estate administration is unique for every individual – and it depends on the instructions left by the deceased, if any.

Complexities can arise during the probate process but fortunately a specialist solicitor can help you resolve these issues in the most straightforward way.

For example, if your loved one’s final wishes are not reflected in their Will then it is possible for the Will to be changed after their death. However, it is only possible to make changes to the share of inheritance given to you and a deed of variation must be prepared in order to make any changes.

Similarly, if someone dies without a will, a deed of variation can also be prepared to reflect someone’s express wishes.

You solicitor can help you with this application and with handling the process if your application is accepted, as this can be a difficult and upsetting procedure.

To find out more about the process of estate administration or to speak to one of Bartletts specialist solicitors about handling a loved one’s estate, contact us on  01244 311 633 or email advice@bartletts.co.uk

How does Inheritance Tax Work?

How does Inheritance Tax Work?Inheritance tax is unfortunately a fact of life but the good news is you can take steps to minimise the amount your loved ones have to pay after you die.

Inheritance tax (IHT) and Wills go hand in hand and you should use your Will to keep the amount of IHT owed on your estate to the smallest possible sum – as well as to look after loved ones when you’re no longer around.

Inheritance Tax Facts

According to the Office for Budget Responsibility (OBR), approximately 6.5% of estates will face the 40% IHT rate by 2026 – which is a lot more than the 3.7% of estates facing the higher rate in 2020.

So, what is causing this sharp increase in estates facing the higher IHT rate?

According to the OBR, it’s a combination of:

  • Huge rises in property prices
  • Extra deaths caused by the Covid-19 pandemic

The IHT threshold has remained at £325,000 since 2009. This means that no tax is paid on estates worth less than this amount. There is an extra £175,000 allowance for the family home provided it passes to direct descendants, and this will stay frozen until 2026.

The good news for married couples and civil partners is that any IHT allowance unused can be passed onto a spouse or civil partner, meaning they can effectively leave an estate worth £1million in total without their family having to pay any inheritance tax.

What Are The Implications Of More Estates Facing 40% IHT Rate?

It is likely that more and more people will want to minimise or avoid IHT being payable by sharing their wealth during their lifetime rather than leaving it to loved ones in their Wills.

Lifetime giving can be challenging, though, and you should be wary of:

  • Undue influence
    This is when someone is pressured into making a big gift of money or property, when perhaps they don’t want to. This so-called undue influence can be hard to identify and establish either during the lifetime of the victim or after their death, but it’s not impossible. Even when someone appears willing to transfer across their property, they can still be found to have done so under undue influence.
  • Predators
    With wealthy elderly relatives, you need to be watchful of greedy family members but also stranger predators. There are individuals who will try to groom vulnerable elderly victims into marriage – it’s scary how few safeguards are actually in place to prevent a marriage involving an elderly person lacking mental capacity. As marriage cancels an existing Will, a victim’s ‘spouse’ inherits the estate, and benefits from the IHT spouse allowance too.
  • Gift with reservation of benefits

These are gift where the ownership of an asset is transferred to someone else but the person making the gift retains the benefit of the asset.  For example, gifting your own to your children but you remain living in the property.  HMRC will treat that asset as still belonging to you and its value will be taken into account for IHT purposes.

What Can You Do To Keep Safe?

If you have doubts about someone – either someone who you think may be pressuring a family member or putting too much pressure on yourself – seek legal advice as soon as possible. You may be able to put safeguards in place and take steps to ensure your wishes and those of a loved one are respected.

How We Can Help You

Our specialist Wills and probate solicitors are here to help and advise you on every aspect of inheritance, including IHT and Wills disputes and what to do if you suspect someone is trying to take advantage of a family member or influence your decision making.

We will listen to you to ensure we fully understand your circumstances before providing tailored advice and support to help you make the right decisions for you and your loved ones.

To discuss inheritance tax or Wills with one of our solicitors, contact us on 01244 311 633 or email advice@bartletts.co.uk

What Are British Attitudes Towards Wills and Bequests?

Research by wealth management company Charles Stanley provides some interesting insights into British attitudes towards making wills and receiving bequests. Slightly more than two thirds (68%) of UK adults intended to divide their assets evenly among their children, however, 16% said they would not do so, while a further 16% remained undecided. Reasons given for not splitting wealth equally included the differing personal circumstances of children, and how close relations were between parents and children later in life.

The research also revealed the family problems and distress that result when an inheritance is not split equally between children. Roughly half of the baby boomer generation (those born between 1946 and 1964) said they would be upset by an uneven split, and more than a third of all UK adults felt the same.

British people are surprisingly shy about discussing inheritances, with only one in five respondents stating that they had talked openly about the subject with their family. This means that the majority of UK families are failing to plan ahead, which can have a negative financial impact and lead to family disputes that are often only resolved after lengthy and expensive court proceedings.

If a person dies without making a will they will have died intestate, and their estate will be divided according to the rules of intestacy, which are arbitrary and may not reflect the wishes of the deceased. To avoid family conflicts and ensure that the intended beneficiaries receive the correct share of an estate, the testator (the person making a will) should carefully consider their legacy and seek legal advice from a law firm like Bartletts Solicitors.

 

Should I Make A Will If I am Co-Habiting?

Should I Make A Will If I am Co-Habiting?Co-habiting partners don’t have the same legal rights as married couples or those in a civil partnership when it comes to inheritance – so it is vital you make a Will if you’re living with your partner.

To ensure your estate or that of your partner’s is distributed according to your wishes after you or your partner die, you need to stipulate what should happen to your assets in a Will. This is because the deceased’s estate will be distributed according to a Will or the rules of intestacy if there is no Will – and co-habiting couples are not recognised under intestacy rules.

Rules Of Intestacy

The rules of intestacy decide how an estate is distributed when there is no legally valid Will, and state that distribution starts with spouses or civil partners before moving on to children and more distant family members.

Co-habiting partners receive nothing under intestacy rules. In order to benefit, the surviving partner would need to undertake expensive and stressful legal action.

What About Joint Assets?

Some assets may pass to the surviving partner but it depends on the circumstances.

When it comes to property, if you live with your partner and are joint tenants of the property you own, then you as the surviving partner will automatically inherit the whole property.

However, if you live together in a property you co-own as tenants in common, then your deceased partner’s share of the property forms part of their estate and does not automatically pass to you as the surviving co-owner.

Why Make A Will?

Making a Will ensures your specific wishes are carried out after you die and enables you to look after loved ones when you’re no longer around to do so in person.

If you live with your partner but aren’t married or in a civil partnership, it is even more important to make a Will as you don’t have the same legal rights when it comes to inheritance.

By making a Will, you will be able to:

  • Protect each other’s financial security for the future
  • State who should inherit your assets
  • Appoint guardians for your children
  • Stipulate a plan for what happens after you die
  • Minimise inheritance tax – there is no equivalent of the spouse allowance for co-habiting partners so you need a Will to ensure assets aren’t taxed twice, on your and your partner’s deaths

How We Can Help You With Your Will

If you co-habit with your partner and want to ensure you look after one another after you die, then you need to make a Will. This will enable you to financially protect your partner as well as provide emotional security when it comes to any children you have and peace of mind that your partner will inherit when you die.

Our specialist solicitors have experience of assisting with every part of estate planning including Wills, and are here to help you draft a Will that is right for you and your individual circumstances.

To discuss making a Will with one of our solicitors, contact us on freephone 0800 988 3674 or Chester Tel: 01244 311 633 or email advice@bartletts.co.uk

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