Wills and Trusts

Protect your legacy today with Wills and trusts

Irrespective of your age or stage in life, drafting a Will and considering trusts should be a leading priority. This will ensure your affairs are in order and your loved ones are protected during the stressful time after you pass and for the future.

Wills and trusts are the cornerstone of estate planning and play a pivotal role in safeguarding your assets and wishes for future generations. Wills and trusts are not just legal documents; they are powerful tools that allow you to shape your legacy and protect the financial wellbeing of your loved ones. A Will provides clear instructions for the distribution of your assets upon your passing, ensuring that your wishes are respected. Trusts, on the other hand, offer a level of control and flexibility that can be invaluable for wealth preservation, tax efficiency, and protecting beneficiaries, especially in complex family dynamics.

At AmicusLaw, we understand that the world of Wills and trusts can be daunting, but our expert and highly experienced team are here to simplify the process and guide you through every step, with an approach tailored to your individual needs.

Whilst there are a growing number of low-cost options emerging to help you to prepare your Will, this is often a false economy especially if your arrangements are more complex. With so many aspects of your life, wealth and estate to consider, it adds huge value to choose a properly qualified solicitor.

Useful guides

If your relationship has ended then you should review your Will, especially if you have children, or if you do not intend to divorce your estranged spouse at this point in time.

If you die intestate (ie without a Will) then a former partner who you were not married to and no longer live with is not normally entitled to anything from your estate. If you are married but separated your spouse would still be entitled under the Intestacy Rules, albeit the amount varies depending on whether or not you have children. Once you are divorced your former spouse normally has no entitlement on intestacy albeit they may be able to claim against your estate if you were making maintenance payments to them for their own benefit.

If you die with a Will then a former partner, whether you are married to them or not, still remains entitled under it until you change it. Once you are divorced from a spouse then your Will is interpreted as though your spouse had died before you and has no entitlement unless you make a new Will post divorce which benefits them. As above, they may be able to claim against your estate if you were making maintenance payments to them for their own benefit. Their appointment as Executor lapses although this can leave you without an Executor.

However there is a window between when you first decide your marriage has broken down and before when a decree absolute will be granted when your soon to be former spouse could still be an Executor and beneficiary of your Will if you do not otherwise change it. We would recommend changing your Will sooner rather than later. At the same time it is also important to consider severing the ownership of any property which you own jointly; otherwise this could pass to your former spouse automatically.

If you have children under 18 then having an up-to-date Will is even more important as if you are intestate or have a Will without an Executor then any surviving parent of your children is entitled to become the personal representative of your estate. Accordingly, an ex-spouse or partner could have control of your children’s inheritance.

If you have children from more than one relationship then your Personal Representatives could be two former spouses or partners who do not get on and which could spell disaster for the successful and cost-effective administration of your estate and protection of your children’s inheritance.

A carer of children (even where that carer is a parent) can request financial help from a Trust Fund to assist with looking after children, if that carer is also a Personal Representative of your estate they have a financial interest in deciding how much to pay themselves from the children’s inheritance, and there may be little that can be done to stop them abusing this opportunity.

Your Will should also appoint Guardians to have responsibility for any children under the age of 18 although the appointment is normally only effective after the death of all those with Parental Responsibility for the children.

Your next of kin are normally responsible for making your funeral arrangements but if this is your children you may wish to use your Will to nominate someone else to have this responsibility until the children are old enough. You can set out your wishes as to burial/cremation and funeral formalities. It can also say if you wish your body to be used for transplant surgery or for medical research. However, as the Will may not be read for some time after your death, it also important to let your family/friends know your wishes.

When making a Will, you should also consider making a Lasting Power of Attorney to appoint one or more people to look after your financial affairs if you became unable to do so because of mental or physical impairment. This is even more important if you no longer have a spouse or partner who may have been able to do this previously. Further information is available in our Lasting Powers of Attorney guide.

Further information about Wills generally and Inheritance Tax Planning can be found in other guides.

It is therefore vital to make a Will appointing Executors of your choice who can then become Trustees of your children’s inheritance until they get to the age you have specified in your Will at which they should inherit, and to set out who should look after your children and who should have responsibility for your funeral. Taking care of this can help avoid unwanted outcomes and family arguments.

Without a Will you die intestate and your wealth (or “estate”) passes according to statutory provisions. This can mean a spouse/civil partner may not be entitled to everything and a cohabitee receives nothing. Those who will deal with your estate are also appointed by the statutory provisions. If your estate is to pass to children under eighteen this will normally be the surviving parent, even if that parent is not or never has been married to you, which could mean an ex partner controlling your children’s trust fund! These problems can be avoided by making a Will dealing specifically with these issues.

When making your Will there are various things to consider, including:

1 EXECUTORS
Are responsible for administering your estate by establishing the extent of your wealth, discharging debts, paying funeral expenses, taxes etc. They also pay out any legacies and distribute the rest of your estate according to your Will. Executors must be over 18, but can be a beneficiary of your Will. If you intend to leave all or most of your estate to one beneficiary you may wish to appoint him/her as sole executor. Otherwise it is normal to appoint at least two executors. We can be appointed as your Executors and this may be helpful if your affairs are complicated or the Will may be contested.

2 TRUSTEES
If your Will creates a trust (even if only to hold money for a child until they are 18) Trustees are responsible for dealing with it. It is usual to appoint the same people as Executors and Trustees, but they can be different.

3 GUARDIANS
Have responsibility for children under 18, but the appointment normally only takes effect if both parents have died.

4 FUNERAL ARRANGEMENTS
A Will can include funeral wishes and also indicate consent to organ transplant or use for medical research. However, as the Will may not be read for some time after your death, it is important to let family/friends know of any particular wishes and it is especially important to say so if you wish an unmarried partner to have responsibility for arranging the funeral. We can also put you in contact with undertakers with whom you can pre-arrange your funeral

5 LEGACIES
Are mainly of two types:

5.1 cash gifts to individuals or other beneficiaries such as charities. Unless a Will says otherwise, these legacies are normally free of Inheritance Tax. You can also direct that a particular cash legacy has priority (in case your estate is insufficient to pay all legacies in full), or for index linking so the value of the legacy keeps up with inflation.
5.2 Specific gifts such as jewellery, furniture or land. These are also normally free of Inheritance Tax unless a Will says otherwise and usually have priority over cash legacies.

6 RESIDUARY ESTATE
This is what remains after your Executors have paid:

6.1 debts and funeral expenses
6.2 any Inheritance Tax or other taxes
6.3 legacies and bequests
6.4 legal and other costs of administering your estate

It is important to include a residuary gift in your Will and usual to include a substitute beneficiary in case your first choice dies before you. For instance, you may give your entire estate to your spouse/civil partner, but if he/she dies before you then to your children and/or grandchildren.

7 TRUSTS
Rather than making an outright gift, a trust can be used to hold cash or assets to prevent the beneficiary(ies) having direct access, but with provisions as to who is to benefit from the assets and how, including allowing occupation of a property. They are 151018 also very useful in protecting assets against care fees or in second relationships to ensure assets pass back to your own children in the long term.

At the same time as dealing with your Will we can also advise on:

Inheritance Tax Planning
Inheritance Tax is payable at 40% on the value of your estate at death, together with gifts made in the preceding seven years, in excess of the Nil Rate Band (currently £325,000). The value of your estate may include life policies, pension benefits and assets given away that you still enjoy the benefit of. Since October 2007 any unused Nil Rate Band of the first spouse/civil partner to die can be used by the survivor’s estate. If your net worth exceeds this you may wish to try to reduce the tax impact by disposing of assets now, or other means.

Lasting Powers Of Attorney
When making a Will, you should also consider a Lasting Power of Attorney by which you appoint someone to deal with your affairs if you became unable to do so because of mental or physical impairment. Please ask for our Lasting Powers of Attorney leaflet for further information.

The importance of guardianship in your will

by Nicholas Bevan

Nicholas Bevan

Partner

When thinking about writing your Will, there’s often a strong misconception that it is just about providing financial security for your loved ones. The truth is that your Will is about so much more.

For parents one of the most important roles of a Will is to define who the legal guardians of your children will be in the event of you passing unexpectedly.

What is Guardianship?

Guardianship within a Will refers to the legal provision where an individual, known as a guardian, is designated and entrusted with the responsibility of caring for and making important decisions on behalf of your children in the event of your death.

Why is it so important?

1. Choosing your children’s guardian

By declaring guardianship in a Will, you as the parent, have full control over who will become the legal guardian of your children in the event of your death, instead of leaving this in the hands of the law.

2. Avoidance of conflict

With no clear instructions in place, disagreements between family members and friends can surface, creating unnecessary tensions and emotional distress at a particularly difficult time.

3. Stability and Continuity

Losing a parent is lifechanging and incredibly difficult for children of any age. Whilst there is no replacement for a lost parent, selecting the right guardian will greatly ease the transition and help to maintain a sense of normalcy for their emotional wellbeing.

4. Inheritance Matters

In the absence of a Will, laws dictate the distribution of your assets. Whilst your child is likely to be the beneficiary of your Will in the eyes of the law, the way in which they may inherit your assets may not be best for their future.

Perhaps the most compelling reason to establish guardianship in a Will is peace of mind. The knowledge that if you were no longer here, your children would be well-cared for according to your wishes.

Don’t leave anything to chance and prepare yourself as soon as you can. There might be costs, and the process can feel uncomfortable, but when it comes to your children’s future it really does pay to write your Will properly, sooner rather than later.