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Wills, Trusts & Probate - Frequently asked questions

Why do I need a Will? Having a Will means that you decide what happens to your belongings after you die. If you don't have one, the law will decide who inherits; and your belongings may not be shared out as you'd like. Having a Will also helps prevent arguments between family and friends over who gets what.

What happens if I do not have a Will? If you haven't made a Will, or it can't be found, you are said to have died 'intestate' and the Rules on Intestacy dictate how your estate will be divided. For example, if you're not married, your estate would go straight to your children. If you have no children, the estate would go to your parents. If they had already died, it would go to your brothers and sisters.

Even if you're married, if you have children, your spouse will still only be entitled to your personal possessions, the first £250,000 of your assets plus half of the remaining estate. Depending on property prices, this could mean your family home has to be sold, if it isn't already jointly owned.

What happens if I have no family? If you don't have a partner, children or relatives and die without a Will, the estate goes to the Crown. If you have no relatives, you may wish to leave your possessions to friends or to charity.

Do I have to include children I no longer have contact with? You can choose who you include or exclude from your Will, but the law needs to know that it was a conscious decision to exclude any children.

If you intend to exclude anyone who would expect to be included in your Will, such as a spouse, partner or children (and, in some cases, other financially dependent relatives), you should inform us and leave a letter with your Will stating your intentions or they may be entitled to make a claim on your estate.

Will my house be included in my estate? In the most common situation, if you own a house jointly with someone, ownership will pass to the other person, regardless of what you say in your Will. However, the value of your share may count when calculating Inheritance Tax. It is possible to "split" ownership during your lifetime so that your share would be passed on according to your Will, but, as there are so many other factors to consider, you need to take advice before doing so.

Does the Will cover holiday villas abroad? The law of the country where the property is located may dictate who you can leave the property to. We would advise you to make a Will in that country and leave the property out of your UK Will. However, Inheritance Tax may still be payable on this property even though it is abroad. If you're in this situation, we can offer advice on tax planning to help reduce the amount of your estate that will be chargeable to Inheritance tax.

I made my Will several years ago and have since divorced my wife and re-married. Is the Will still valid? When you remarried, your old Will would have immediately been cancelled, so you need to make a new one. Your first wife may be able to make a claim on the estate if she has not remarried, unless she was specifically excluded from doing so as part of the divorce agreement.

What if I'm divorced but have not re-married? Any gifts set out in your existing Will to your former spouse will be cancelled by the divorce, and they will no longer be an executor. The rest of the Will still stands, although we'd advise you to appoint another executor. Remember, if your former spouse has not re-married, they may be entitled to make a claim against your estate, unless they have been excluded from doing so as part of the divorce agreement.

Do I have to pay Inheritance Tax? If the value of your estate, including your house, amounts to over £325,000, then Inheritance Tax may be payable, depending on who you leave your estate to. It's worth seeking advice on tax planning to reduce the amount payable.

Who can witness my Will? A Will must be signed by the Testator (i.e. the person making the Will) in the presence of two witnesses over the age of 18. The witnesses must not benefit themselves under the Will nor be married to anyone who will benefit. They don't need to read the Will, they simply need to know it is your Will and they are witnessing your signature and identity.

Where should my Will be kept? It should be kept in a safe place, such as our safe storage facilities, where we offer to keep it free of charge. Most importantly, you must tell your executors where it is. If the Will cannot be found, the law will assume that you have died intestate.

Why would a Will state that my spouse or partner would only inherit if they survived me by 28 days? If a husband and wife, or both partners, were to die within a short period of each other, the assets of the first to die would have to be transferred twice, which can make the probate process more complicated. Specifying the 28 day period simplifies the process and allows each Will to follow the testator's wishes for the specific circumstances.

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call 08000 284 396 or email enquiries@dbf-law.co.uk