| Technical Information
The Wills Act 1873
Includes the formalities required for a valid Will, and Administration of Justice Act 1982 highlights the bare minimum which a Last Will and Testament must have to be valid. (as per the free Will on the Home page).
Persons under the age of 18 cannot make a Will unless they have privileged status (normally working for the armed services)
Also consider the Family Law Reform Act 1969 which refers to this.
Drafting of a Will
Disposition of property normally falls into
Specified Gifts, General Legacies, gifts of residue.
Consideration needs to be given i.e. for monetary gifts as the value will change over time and this may better be stated as a percentage of the estate or bank account etc.
Wills are usually written without punctuation, instead broken down into paragraphs for easy reading. Each of the paragraphs is carried out in that sequential order as written. The wording is critical and traditional words are used as they have specific and defined meaning under law (reduces any chance on ambiguity or misinterpretation).
The Structure
1. Commencement and Date
2. Revocation Clause (if applicable Not used if a foreign Will is in existence).
3. Appointment of Executors, trustees and Guardians
4. Specific Gifts
5. General Legacies
6. A gift of Residue
7. Extension of powers by Trustees and Executors
8. Attestation Clause
Often allowances are made for survivorship clauses i.e. what happens on the first death, second death and disaster clauses particularly where married couples or young children are concerned.
The solicitor or Lawyer must offer to oversee the execution of the Will.
Inheritance Tax
There is no Inheritance Tax charge to a spouse, The Inheritance tax charge is based on the estate at the point of death, and may include insurance policies that have not been placed in trust for others. (Your financial advisor will be able to help you). If you are likely to hit with IHT then there are a few considerations
a. Can you give items away during your life time (IHT is still applicable on a sliding scale for up to 7 years after the gift has been made)
b. Insure against the shortfall i.e. have additional life cover to the value of the tax bill.
c. Create Trusts to hold the money or items for a specific purpose.
There is currently a tax threshold and further information is available on the IHT page of this website.
If a property contains business or agricultural land / property it may attract up to 100% relief Capital Gains Tax.
Taxation of Chargeable Gains Act 1992
If the deceased has made transactions prior to his/her death which give rise to capital gains tax then the person dealing with his estate must pass on discharge on the deceased behalf.
If the beneficiary receives a gift the value is based on the value at the time and date of death. If the acquisition has taken place but no disposal of the item then there is not capital gains tax to pay.
Income Tax may also be applicable and is calculated on the day after death until the end of the administration period (i.e. investments, farms, business etc).
Your financial Advisor should be able to help in this matter.
Probate
If any gifts are to be make to children then they may need to be placed in a trust until the child reaches a specified age. The trustees can and very often are the same as the executor.
Note
Most Will writers and Solicitors only have liability cover from between £1mill and £2Mill. If your estate is of a higher value that this you need to check and make suitable arrangements to ensure suitable liability cover is in place for your protection.
Acts that relate to Wills
The Inheritance (provision for Family and Dependants Act 1975
Taxation of Chargeable Gains Act 1992
The Wills Act 1873
Administration of Justice Act 1982
• Other Information
Courses to improve your Knowledge and to keep updated.
UWE University of the West of England - Bristol Institute of Legal Practice.
Email: Susan.Harris@uwe.ac.uk
bilp.uwe.ac.uk/cpd
Tel 0117 32 82424
Offers a full range of courses to meet CPD needs for Solicitors.
Recommended Reading
How to Write your Will
Author: Marlene Garsia
Publisher: Kogan Page
A basic book suitable for those that want to attempt writing a basic Will
Wills, Administration and Taxation:
A Practical Guide. Barlow, King and King published by Thomson Sweet & Maxwell.
This is a technical book suitable for solicitors and specialists as a reference and training book..
There are many more books available on this subject.
Disclaimer
This is designed to give you a brief overview of the discussion points. The writing of Last Will and Testaments together with Probate and Tax can be a complex issue as everyone's circumstances are different. It is not possible to discuss all issues within this site and hence you should sort professional advice before undertaking any of the above.
For local Will Writers, Financial advisors etc please see our links page Contacts
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