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What
is a Will?
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A Will
is a document containing details of how you wish your
property and money to be distributed in the event of your
death.
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Can anyone make a Will?
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Anyone
can make a Will provided they are above the age of eighteen
and of sound mind. If there is a possibility of the testator's
mental capacity deteriorating (such as with certain illnesses)
then a Will should be written immediately and witnessed
by the testators doctor or the doctor should make a written
statement validating their mental state. This will ensure
that there can be no challenges on the grounds of their
mental capacity on death.
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What
happens if I die without a Will?
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Here's a very
basic guide as to what would happen if you don't have a Will.
If you
die without a Will your estate will be distributed subject
to the 'laws of intestacy'. These laws are basically a
set of legal rules which have to be followed when someone
dies to provide them with a state written Will.
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you are Married |
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If you are married and you do not have a Will the amount your spouse can inherit is limited by the Government.
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If the estate is worth less than £125,000 your spouse will receive everything.
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If it is worth more and there are no children or relatives, your spouse will receive everything and inheritance tax will be payable on everything over £242,000.
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If there are children then your spouse will receive £125,000 plus personal chattels and the rest of the estate is divided into two. The children receive one half and the other half is held on trust. The spouse then receives income arising from that trust over his or her lifetime.
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If there are no children, then the spouse is entitled to the first £200,000, plus personal chattels and the rest of the estate is divided into two. The parents (or brothers and sisters) receive one half and the other half is held on trust. The spouse then receives income arising from that trust over his or her lifetime.
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If there is no spouse and no living relatives then the estate will automatically go to the Crown.
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If you
are Divorced
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If you
are divorced your Will will be treated as a single person
unless you have remarried.
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| If
you are Cohabiting |
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It is
worth noting that if you co-habit you are still classified
as single and your Will would be subject to the rules
applicable for single persons.
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| If you
are Single |
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If
you are classified as single with children or grandchildren
your property would be distributed equally between your
children. If any of your children have died then it would
be divided amongst their children.
If you do not have children but are co-habiting you are still classified as single and your belongings would go to your parents in the first instance and then other family members. Your belongings would not go to your partner.
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It
is worth bearing in mind that in the event of dying without
a Will you have no control over who gets what and in most
cases where there are no living relatives, people would
rather their belongings went to friends or charities rather
than it becoming the property of the state. It is therefore
essential to have a Will if you have specific desires
as to what should be done with your possessions.
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What
does a Will allow me to do?
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A Will
enables you to specify exactly how you want your money
and possessions to be distributed to your beneficiaries
and who you would like to appoint with the task of carrying
these wishes out (executor). It enables you to name guardians
if you have children, to specify people who you would
like to receive certain personal possessions or allotted
amounts of money. It also enables you to appoint trustees
if you want any of your wishes carried out at a later
date such as in the event of leaving property or money
to someone who is under the age of 18 when you die. Apart
from how your estate is distributed you can also specify
how you wish your funeral service to be conducted and
whether you want to be buried, cremated or require a more
unusual ceremony.
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Can
I change or cancel my Will at any time?
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You can make small changes to your
Will by using a codicil (legal term for amendment) but
you must not write in any additions or alterations yourself.
If you want to make big changes (such as if you divorce
or marry) then it is better to write a new Will. You are
not allowed to clip or pin any papers to your Will. If
you want to canel your Will you must destroy it by tearing
it up or burning it.
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Can
my Will be changed after my death?
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Under
normal circumstances it is unlikely that your Will will
be changed after your death. However there are circumstances
when this can happen. For example if you have left somebody
out of your Will but the wording you use is ambiguous
enough they can contest it.
Likewise if you have not provided for any of your dependents
who are unable to provide for themselves, or if you have
been unfair in your dealings with your spouse or ex-spouse
who is not remarried the court can alter your Will. If
you have not provided for someone in your Will then your
reasons should be given as the court will consider them.
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Does
my marital status affect my Will?
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Yes
it does and it is important that any change in your circumstance
is entered in to your Will. A Will is usually cancelled
if you get married after you have made it and if you get
divorced after you have made it then provisions for your
spouse are void.
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What
happens to property in joint names?
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If you
own property with another person, you will hold it either
as "joint tenants" or "tenants in common". Joint tenants
are usually husband and wife and in the event of the death
of one tenant, the other becomes the owner of the whole
property.
A joint tenant cannot therefore make a gift of their share
of the property. Tenants in common are usually business
partners and in the event of the death of one tenant,
their proportion is allocated as part of their estate
and the tenant can therefore make a gift of this proportion
if they so wish. If you are unsure which tenancy you have
then you should seek help from your solicitor who acted
for you when the property was purchased.
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Do
I have to pay inheritance tax?
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Inheritance
tax is currently set at £242,000 for 2001/02. The basic
rules are that if your estate is worth £242,000 or less
then you do not have to pay any tax. If your estate is
worth more than £242,000 then you will have to pay tax
at 40% on the remainder. There are exemptions to this,
such as assets passed between husband and wife and on
certain gifts. For more information on inheritance tax
click here.
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Where
should I keep my Will?
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Keep
your Will in a safe place at home or if you prefer you
can store it at the bank or with a solicitor. Your executors
should be informed of the whereabouts of your Will.
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What
is a living Will?
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A living
Will or 'advance directive' is a document containing instructions
issued to medical personnel to allow them to stop prolonging
your life in the event of you becoming terminally ill,
permanently unconcious or losing your mental capacity.
Some people decide they do not want to be kept alive in
such an event by either artificial means or medical treatment.
Legally, living Wills cannot necessarily be enforced by
law.
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What
do executors, trustees and guardians do?
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An Executor
is a person who is appointed to administer your estate
in the event of your death. For more information on the
role of an executor tax click here.
A Trustee is a person who is appointed to hold property,
money or possessions for another person until that person
is due to receive it. This is often the case if a person
is too young to inherit.
A Guardian is a person or persons appointed to look after
the deceased children. For more information on the role
of a guardian click here.
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