Oxford Probate & Wills Solicitors

One in three people die without making a Will and this often causes problems and creates uncertainty for those you leave behind.

A Will comes into effect on your death, and governs the distribution of your estate.

Your Will is likely to govern the largest gift you ever make, so it is important that you have a Will in place and keep it updated, so that you determine who your assets pass to. A Will allows you to leave your assets to anyone you choose. Assets could include savings, personal effects, any businesses, houses, among other things.

A Will also appoints executors (those responsible for dealing with the administration of your estate), and can name guardians for any minor children and appoint trustees to look after the money for them.

If you do not leave a Will, the law decides who will inherit your property. This may not be what you want and may not provide adequately for your family.

A Will can be particularly important where there are children of more than one relationship, you are caring for an elderly person or disabled child or other relative or if you are living with your unmarried partner.

If you wish to leave a gift to charity, this can only be provided for in a Will.

When making a Will, it is essential to consider your financial affairs. Your Will can help reduce any tax that may be payable, for example by ensuring that you use the available nil rate bands effectively. The nil rate band is the amount which you are able to give away before inheritance tax becomes payable on your estate. The current basic limit is £325,000 but it may also be possible to use any unused nil rate band from a spouse who has already died, and there are special rules where property is left to children.

A Will is an important legal document and with careful planning and drafting it can help you secure the future for those you leave behind. There are many factors to consider and we will guide you through these. Your professionally drafted Will can provide reassurance for you and help reduce any risks and pitfalls that may arise in the future.

In its most basic form, a trust arises when a person (known as the settlor) gives assets to another person (known as the trustee) to hold in their name but on behalf of someone else (known as the beneficiary). The trustee owns the assets and makes sure the terms of the trust are complied with. The beneficiary is the person entitled to benefit from the trust assets.

There are lots of different types of trusts that can be created, depending on the individual circumstances and what the settlor wants to achieve. For example, trusts are often used where there are vulnerable beneficiaries that cannot manage the trust assets themselves, allowing assets to be protected. This could be because of the beneficiary’s age or a disability.

Trusts can also be used to provide flexibility over the assets or supervision for the beneficiaries, particularly if the trust assets are substantial and the settlor wishes to retain a greater element of control than an absolute gift would allow. Trusts can also be extremely useful in protecting assets for future generations; they can be set up to allow a spouse or partner to benefit from assets during their lifetime while ensuring the assets ultimately pass down to the next generation. These trusts are very common where there are children from previous relationships.

The tax treatment of trusts is complex, because different trusts are subject to different tax regimes. As such, it is very important that trusts are carefully drafted and appropriate advice taken.

Nobody wants to pay more inheritance tax than they have to.

One way to reduce inheritance tax is to make lifetime gifts – any gift to an individual will be outside the scope of inheritance tax after seven years have passed, provided the person making the gift hasn’t subsequently benefited in any way from the gift made (with some limited exceptions). There are also various exemptions available which make gifts tax free without the seven year waiting period – such as regular gifts from excess income. Gifts into trusts allow the tax benefit of making a gift without having to worry that the beneficiary will mismanage the funds or waste them, allowing the funds gifted greater protection from divorce or bankruptcy, although lifetime inheritance tax charges can arise if the amount given exceeds the available allowance.

Another way to mitigate inheritance tax is to invest in assets which obtain relief, such as business or agricultural assets, provided the relevant qualifying criteria are met.

It is also important to consider Wills in this context, to ensure that all available exemptions and reliefs are utilised. For example, the new residential nil rate band is a very valuable extra tax free allowance which can be claimed when certain criteria are met but could be easily lost if a Will is not drafted appropriately.

Here in Oxford, we can not only advise you about lifetime planning and opportunities, but also ensure that when the time comes, we assist your executors in making all the available claims for reliefs and exemptions.

An Executor is the person or persons who has been appointed by the deceased (also known as the testator) to ensure that the terms of their Will are implemented and to administer the deceased’s estate. An executor is also known as a personal representative.

The personal representative’s duty to administer the deceased’s affairs includes:

• Ascertaining the value of the deceased’s estate which may include property, bank accounts, investments and business assets including identifying any liabilities outstanding at the date of death.
• Reporting the estate to H M Revenue and Customs and paying any inheritance tax due.
• Applying to the Probate Registry for the Grant of Representation.
• Adequately protecting the estate’s assets during the administration period.
• Collecting in the assets of the estate and paying any liabilities, which may include the sale or transfer of property and the sale and transfer of shareholdings.
• Distributing the estate in accordance with the Will or intestacy rules.

Dependent upon the terms of a Will, a personal representative may also have an ongoing responsibility in the capacity of Trustee. For example, a Trustee may have to hold and administer assets within a Trust until a beneficiary reaches a certain age. In a Will Executors and Trustees can be the same or different people, dependent upon the terms of the appointment.

For more information about trusts please see our trust page.

The roles of an Executor and Trustee can be time consuming and onerous and may bring with them personal liability. Freeths’ experienced team can provide advice and assistance with this. Please contact us for an initial consultation about an Executor and Trustees responsibilities and the ways in which Freeths can help.

When preparing a Will, careful consideration should be given to the appointment of Executors and Trustees. Those appointed should be trustworthy, dependable and prepared to take on what can be an onerous role. In some cases, the appointment of a professional may be appropriate, or the appointment of a dedicated Trust Corporation. This can provide an efficient service with the added advantage of providing continuity through what can be a lengthy process. Please ask for more information about Freeths Trustees Ltd, our dedicated Trust Corporation.

A Grant of Probate is a legal document which names the executors (or personal representatives) dealing with the administration of a deceased’s estate. Dependent upon the circumstances the document can be known as a Grant of Administration. The Grant gives those named the authority to deal with the administration, which includes collecting in the assets, paying any liabilities and distributing the estate in accordance with any Will or the Intestacy Rules.

A Grant of Probate is issued by the Probate Registry following an application by the personal representatives.

A Grant is required to deal with certain assets such as shareholdings and bank accounts and is normally required to sell or transfer the deceased’s property.

There are certain circumstances in which a Grant will not be required and Freeths can advise on those circumstances, help with the Grant application if necessary, and the administration of the estate.