Will my family pay Inheritance Tax on any Life Insurance Payout?

Inheritance Tax is payable at a rate of 40% on the value of your Estate over the Inheritance Tax Threshold. The Inheritance Tax Threshold is currently set at £325,000 per person and an additional £175,000 can be claimed if you are passing your residential property to a direct descendent (children / grandchildren), this is termed the Residential Nil Rate Band. Thus, an individual, passing their main residence to a direct descendant, could pass a total of £500,000 before being liable for any Inheritance Tax. This sum is transferable between spouses and civil partners, meaning that, for married couples, the Estate can total £1million before any Inheritance Tax is payable.

For more information on Inheritance Tax, check out our article, What is Inheritance Tax and how can I reduce it?

To calculate the value of your Estate, all of the assets are gathered in and their value totalled. A similar exercise is done with any debts and liabilities (credit cards, loans, funeral expenses etc.) and the total value of the liabilities is subtracted from the total value of assets and this final figure is what is considered when deciding whether Inheritance Tax is payable.

In this article, we will be focussing specifically on Life Insurance Policies and whether any payout from such a policy will need to be included when calculating the Estate assets…

Whether a Life Insurance Policy will form part of the Estate, will depend on how the policy was written. Usually, the policy is written so that the payout is made directly to the beneficiary (or beneficiaries) and so the money never enters the Estate and thus not subject to Inheritance Tax.

However, that does not mean that Life Insurance is not relevant in relation to the Estate and Probate.

Where a Life Insurance Policy has been taken out to cover a mortgage (often being a condition of the Lender before any mortgage is agreed) the Life Insurance Policy will repay the mortgage, upon death, and thus the debts and liabilities of the Estate will be reduced and this may in turn increase the value of the Estate to above the Inheritance Tax Threshold.

Alternatively, Life Insurance Policies can be written into Trust…

When a Life Insurance Policy is written in to Trust, it means that upon your death the lump sum payout (or regular payments, depending on how the policy has been set up) is paid from the Trust and not your Estate and as such it is usually exempt from any taxes (including Inheritance Tax), although this is subject to the approval of HMRC. This is usually the way in which pension plans, through an Employer, are written.

It is important that you know exactly what will form part of your Estate when you pass, whether your Life Insurance and Pensions are written into Trust (or will add to your Estate value) in order that you can make the necessary plans and put provisions in place to protect your loved ones.

If you would like to have a free chat about your options, an existing Will or in relation to making a new Will, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

Leah Waller

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28th October 202129th October 2021

Can I claim Agricultural Relief to reduce my Inheritance Tax liability?

Can I claim Agricultural Relief to reduce my Inheritance Tax liability?

A couple of weeks ago we looked at Business Relief and how this can be used to reduce an Inheritance Tax liability – you can check out the article here.

So, let’s take a look at Agricultural Relief and whether this is something you should consider when Estate planning or something you should be considering as an Executor or Beneficiary of an Estate.

First things first…

What is Agricultural Relief?

Agricultural Relief can be used on land or pasture that is used to grow crops or to rear animals intensively, examples of this include:

Land used to grow crops;
Stud farms for breeding and rearing horses;
Land used to plant trees (that are harvested at least every 10 years)
Land that is not being farmed under a crop rotation scheme
The value of milk quota that is associated with an area of land;
Farm buildings;
Farm cottages;
Farmhouses.

How much Agricultural Relief can be claimed?

Agricultural Relief can be claimed at 100% of the value if certain conditions are met.

In order to claim Agricultural Relief at 100% the person that owned the land must have farmed it themselves and so it is important to consider whether they were still working the land at the time of their death. However, the Relief is still available, at 100%, if the land was used by someone else on a short-term grazing licence.

Agricultural Relief can also be claimed at 100% if the land was let on a tenancy that commenced on or after 1 September 1995 and in some circumstances it is available for property owned before 10 March 1981 if other criteria are also met.

Where Agricultural relief is not available at 100% because the criteria and conditions are not met, the Relief may still be available at a reduced rate of 50%.

When considering claiming Agricultural Relief it is important to note that the buildings must be of a size and nature that is appropriate to the farming activity that is taking place; the properties will be valued as if they can only be used for agricultural purposes (which may well be lower than a usual residential property valuation) and if there is any value above this then this would not qualify for Agricultural Relief.

What Agricultural relief CANNOT be claimed for

The following assets will NOT qualify for Agricultural Relief (but may qualify for Business Relief):

Equipment and Machinery used for farming;
Derelict Buildings;
Harvested Crops;
Livestocks;
Property that is already subject to a binding Contract for Sale.

It is important to note that when calculating the Agricultural Relief, any mortgages or secured debts against the property or land will need to be deducted first and then the Relief can be calculated.

If you have claimed Agricultural Relief then you cannot also claim for Business Relief for the same asset or assets. However, if Agricultural Relief is not available at the full 100% then you may be able to claim Business Relief on the remainder and this should be considered very carefully.

If you think that your Estate may qualify for Agricultural or Business Relief, or want to find out, it is important to seek specialist advice as this can make a huge difference when sorting out Inheritance Tax and the relevant forms that are required.

Alternatively, if you are an Executor (or Administrator) then you will know that you are under an obligation to maximise the Estate for the beneficiaries and therefore take advantage of all reliefs that are available to you. If you are unsure whether Agricultural or Business Relief applies (or indeed any other Reliefs) please seek the help of a specialist as this could be extremely beneficial to the beneficiaries and reduce the Inheritance Tax liability of an Estate enormously.

If you would like to have a free chat about your options, the Reliefs available, on your existing Will or in relation to making a new Will, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

Leah Waller

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29th September 202129th September 2021

Can I claim Business Relief to reduce my Inheritance Tax liability?

Can I claim Business Relief to reduce my Inheritance Tax liability?

Many of our clients ask us about Inheritance Tax, how much they will have to pay and if there is any way for them to reduce their Inheritance Tax liability.

There are a number of reliefs and mechanisms that can be used upon death, and before through Wills and Trusts, to reduce an Inheritance Tax liability and one of these is Business Relief.

As the name suggests, to be eligible for Business Relief the assets must have some link to Business of the deceased but let’s have a look at this in more detail…

What is Business Relief?

Business Relief can reduce the value of a business or the business assets when valuing it for Inheritance Tax purposes and calculating the amount of Inheritance Tax that is payable.

Any business owned, or part-owned, by the deceased, and any shares in a business are included in an Estate when valuing it for Inheritance Tax purposes but the Executor (or Administrator) of the Estate may be able to claim Business Relief of 100% or 50% depending on the nature of the business assets that were held by the deceased.

*It is important to note that in most cases, the business assets will need to be held for at least two-years prior to death to qualify for Business Relief.

What is eligible for Business Relief?

As mentioned, some Estates will qualify for Business Relief at 100%, this would include where the deceased owned a business, or part of a business, and any shares that are owned in an unlisted company.

*NOTE: this does not include shares owned in listed companies (on the London Stock Exchange, for example).

Where 100% Business Relief is not available, the Estate may qualify for Business Relief at 50% and this would be on business assets such as:

shares which control more than 50% of the voting rights in a listed company;
land, buildings and machinery owned by the deceased and that were used in a business that the deceased owned or controlled;
land, buildings and machinery that were used in a business and held in Trust that it has the right to benefit from

Remember, that the Business Relief is only available on assets that were owned by the deceased for at least two-years prior to their death.

When Business Relief will not apply

An Estate will not qualify for Business Relief if the business owned by the deceased was a not-for-profit organisation, mainly dealt with securities, stocks or shares land and buildings or in making and holding investments, was being sold or is being wound up.

In addition, a business asset (land, building and machinery) will not qualify for Business Relief if it also qualifies for Agricultural Relief (see our blog in a couple of weeks on this!), was not used mainly for the business in the two-years prior to the deceased’s death or if it is not required for the future use of the business.

If you think that your Estate may qualify for Business Relief, or want to find out, it is important to seek specialist advice as this can make a huge difference when sorting out Inheritance Tax and the relevant forms that are required.

Alternatively, if you are an Executor (or Administrator) then you will know that you are under an obligation to maximise the Estate for the beneficiaries and therefore take advantage of all reliefs that are available to you. If you are unsure whether Business Relief applies (or indeed any other Reliefs) please seek the help of a specialist as this could be extremely beneficial to the beneficiaries and reduce the Inheritance Tax liability of an Estate enormously.

Leah Waller

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2nd September 20212nd September 2021

Can I make a Lasting Power of Attorney if I have Additional Needs?

Can I make a Lasting Power of Attorney if I have Additional Needs?

As you may know (especially if you are an avid reader of our articles and blogs😉) a Lasting Power of Attorney is put in place so that someone that you trust implicitly (known as an Attorney) can manage your finances & property and/or your health & welfare decisions on your behalf, when you are no longer able to do so.

A Lasting Power of Attorney must be put in place whilst the Donor (the person giving the Power) has capacity, and a Certificate Provider is required to certify this, in order for the Lasting Power of Attorney to be registered by the Office of the Public Guardian and it can be used.

A question we are often asked is…

Can you make a Lasting Power of Attorney if you have Additional Needs?

As we know, every individual is unique and must be considered on a case-by-case basis, and all needs vary. However, in order to make a Lasting Power of Attorney, the Donor needs to understand the effects of putting the Powers in place.

We are contacted often by loved ones of the intended Donor, parents and family members of carers who want to ensure they are protected and that their money is used in their best interest.

However…the decision MUST be made by the DONOR.

A Certificate Provider will meet with the intended Donor and go through, carefully and sensitively, the current circumstances and ask questions in relation to their individual circumstances and personal affairs, as well as current affairs in the news and media, to ascertain their general capacity and mental wellbeing.

If the Certificate Provider is content that the intended Donor has capacity, and understands the importance of the Lasting Power of Attorney and the extent of the Power that they are giving to their Attorneys, then the Certificate Provider will sign their section of the Lasting Power of Attorney and, following all of the necessary signature, this can be sent to the Office of the Public Guardian for registration.

When registering a Lasting Power of Attorney, it may be necessary to notify people that an application is being made, this is often necessary to protect the Donor. Notification can be given to up to five people, although this cannot be given to those that are being appointed as the Attorneys. This provides extra security for the Donor and allows the person, or people, being notified of the intended registration the opportunity to object to the Power being registered for any of the following reasons:-

if they believe that the Donor does not have mental capacity;

if the person being notified has a genuine belief that the Donor was under undue pressure to give the Power or is a victim of fraud;

if the person being notified has a genuine belief that the Attorney would act in a way that is beyond their powers under the Power or would not be in the best interests of the Donor;

if the Donor of the intended Attorney, or Attorneys, have already passed away;

if the Donor and intended Attorney were married or in a civil partnership and this has now ended;

if the intended Attorney does not have the mental capacity to be appointed as an Attorney;

if the Attorney is bankrupt;

Having both Lasting Powers of Attorney (one in relation to health & welfare and another in relation to property & financial affairs) in place means that, the Donor is able to appoint the people they know and trust, whilst they are still of sound mind to make such a decision, to make decisions for them when they are unable to do so for themselves. This can remove the unnecessary stress from both them and their loved ones and help to manage their day-to-day life much easier.

So, as you can see…

There is no straight YES or NO to the question of whether a Lasting Power of Attorney can be put in place for someone with Additional Needs but we are more than happy to have a chat with you or your loved ones about doing so. We are trained to deal with such circumstances and have many years experience in dealing with sensitive situations.

We are always happy to have a chat with you about putting a Lasting Power of Attorney in place, the Powers that are available and whether this is still a viable option for either yourself or a loved one.

If you would like to have a free chat about Lasting Power of Attorneys, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

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5th August 20215th August 2021

Will my partner inherit my house if I die and we are not married?

Will my partner inherit my house if I die and we are not married?

We often get asked about ‘Common Law Marriage’ and whether a partner will inherit the house (that they have lived in) should they pass away before them.

In short, the answer is NO, not unless you have a Will to state your intentions and wishes.

Common Law Marriage is a term that doesn’t mean very much at all where intestacy is concerned (when a person dies without a Will).

As you know, we like to simplify things and so…

WITHOUT A WILL

If you die without a Will (intestate) then the first £270,000 of their Estate (or all of their Estate if it is valued at less than £270,000) will pass to their SPOUSE – this means that they must be legally married or have entered into a Civil Partnership. A partner does not receive the same status or eligibility.

Anything above the £270,000 will be split in half; 50% of the half will pass equally between the deceased’s children and the remaining 50% will pass to the SPOUSE.

Where there are no children of the deceased, the SPOUSE will inherit everything.

Where there is NO SPOUSE (legally married or civil partnership); any children of the deceased will inherit first and if there are no children then the following order is followed:

Surviving PARENTS of the deceased;
Surviving SIBLINGS of the deceased;
Surviving HALF-SIBLINGS of the deceased;
Surviving GRANDPARENTS of the deceased;
Surviving AUNTS & UNCLES (or their children should they have predeceased) of the deceased;
THE CROWN

As you can see, without a Will, a partner is entitled to NOTHING!

However, this can all be put in order with a Will. Putting a Will in place means that you get to choose who inherits and where your Estate passes following your death.

That isn’t to say that it may not be beneficial to get married…not just because of the romance (of course!) but there are also some tax advantages for married couples / civil partnerships too!

** The Inheritance (Provision for Family and Dependants) Act 1975 gives a right to anyone who is dependent on the deceased to make a claim against the Estate. This can be lengthy & costly to go through the courts to make a claim and can put a lot of stress and strain on the claimant not to mention causing friction within the family.

If you would like to have a free chat about your existing Will or making a new Will, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

Leah Waller

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8th July 20218th July 2021

Where do I keep all of my Information so that it is accessible upon my death?

Where do I keep all of my Information so that it is accessible upon my death?

We all have so many accounts these days, both online and physical accounts. Whether that be bank accounts, gas, electrocity, other utilities, social media and much much more…we are all collecting accounts at an extraordinary rate and keeping track of all those sometimes seems an impossible time for us, let alone for someone else trying to find and collate all that information when we pass.

It is estimated that the average UK consumer is likely to have over 200 online accounts – this is a staggering number and as we are advised to not reuse the same password for all (although, if we are honest how many of us actually take heed of that advice?) that is a lot of information to keep track of.

Another little statistic, from a YouGov survey, that I thought was worth mentioning is…

67% of respondents wanted their social media accounts taken down or removed following their death (with 7% wanting them to remain online). For some accounts, you are able to change your preferences during your lifetime and add someone to take charge of your account following your death but for others, someone will need the login details or just wait for the inactivity to cause the account to be deactivated.

So, this is all very well and good me telling you about this BUT, what can we do about it and where should we be storing this information so that we don’t leave our loved ones with an even bigger headache than is necessary?

Well, that’s where we can help!

We have designed an easy to use ‘Assets & Liabilities’ sheet where you can keep all your information. Either store it on your computer (password protected but make sure you give someone else that password!) or print it, fill it in – and keep it updated – and keep it in a safe place, perhaps with your Will, Lasting Powers of Attorney and other important documents.

This document is only a template and so some sections will be relevant and others not, however you can add and amend as is right for you and ensure that all of your information is kept up to date and all in one place (that is SAFE!).

So what sorts of things do we need to keep track of?

The ‘Assets & Liabilities’ sheet goes through all of the following:

So, first we start with the information about you and everything that your loved ones may need – your National Insurance Number, NHS Number – and other basic information as it is surprising how little information you retain when grieving. Having everything written down and to hand makes everything so much easier.

We have space to keep details of your property, or properties, including mortgage details, utilities and service providers.

We have space to keep details of finances, bank accounts, ISAs, investments, employment benefits, life insurance policies and any other places where money is held.

It is also important to keep details of any pensions, benefits and other income that you receive.

Following that is the social media accounts and email accounts.

We have also left space for you to detail any personal items of value and your wishes for these (should you have any).

As I said at the beginning, not all parts will be relevant to you and some parts may become relevant at a later date, or make you think about something that may well have been forgotten! However, this is a great template to get you started and to begin to get everything in order for you.

Click here to download your free copy of the ‘Assets & Liabilities’ sheet

If you would like to have a free chat about your existing Will or making a new Will, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

Leah Waller

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10th June 202110th June 2021

3 Unusual Ways to Scatter Your Ashes after Cremation

3 Unusual Ways to Scatter Your Ashes after Cremation

We know that many of our clients don’t like talking about death and when we ask if they have any wishes for the funeral or their ashes, following their cremation, we are often met with the response…

“I don’t care, I won’t be here!!”.

Now, we can’t argue with that! However, there may be something you really want (in which case make sure your loved ones know!) or you may be looking for something a little bit different.

So, here are just a few ideas for those of you looking for something a little unusual…

Being planted in a Biodegradable Urn to become a Tree

The Biodegradable Urns are made up of two capsules, one to hold your ashes and the other to hold the seed of your tree of choice.

Following your passing and cremation, your ashes are added to the Biodegradable Urn with the seed of your tree of choice and plated.

This allows your ashes to become part of nature as the tree grows and leaves a lasting physical memory for your loved ones.

Scattering your ashes in space

Your ashes can now be sent, via Aura Flights, to the very edge of space. The memorial package offers a launch from just outside Sheffield that can be attended by family, friends and loved ones. Your ashes will be placed in a scattering vessel and carried around the world on stratospheric winds, encircling the globe and joining with the Earth’s atmosphere over the following weeks and months before finally returning to Earth in raindrops and snowflakes.

A live video can be set up of the launch, for those that are unable to attend,

When the launch is complete, your loved ones will receive a memorial video and flight certificate with details of the launch.

Becoming part of a Memorial Reef

Your ashes could be placed into a Solace Stone and transported to an artificial Reef Sanctuary. This can be done in a memorial ceremony with up to 12 loved ones. Once complete your loved ones will receive a certificate of placement.

The Solace Stone encapsulating your ashes will become part of the Reef’s future growth and be home to a haven of marine life.

We are not affiliated with any of the companies that offer the above services but we do think it is important that our clients are aware of all the options that are available to them. It is important that your loved ones know exactly what you want to happen following your passing and we are always happy to help, whatever the request!

If you do have specific wishes, we would always recommend that these are included within your Will but please ensure that your loved ones are aware…sometimes the Will isn’t read until the funeral arrangements have already taken place.

If you would like to have a free chat, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

Leah Waller

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13th May 202113th May 2021

Is it time to review your Will?

Is it time to review your Will?

We always say that a Will is a working document; What you write in your Will now, may not necessarily be what you want 20 years from now. Or, more to the point, what you wrote 20 years ago may not still be what you want, or even relevant, today. You can review and change your Will (or make a new Will) whenever you wish, providing you still have the capacity to do so.

So let’s have a look at some of the things that may have changed…

Executors: Are your Executors still the right people to be named in your Will?

Do you still speak to your Executors?
Are they Professionals who drafted your Will?
Is there someone better suited to being your Executor now?

If, when you made your Will, your children were still young, you may not have included them as Executors, however are they not best to act as Executors now if they have grown up and are going to be benefiting from your Estate?

Guardians: Is your named guardians still your first choice?

Many of us choose our own parents to be guardians of our children as they are best suited to carry out the role if the situation arises. However, as our children grow older, so do our parents. Are they able to cope with children today, on a full time basis or should you look to someone else – siblings, close friends or someone else that has an active role in your childrens’ life?

Gifts: Do your gifts still reflect what you want today?

Have you replaced any items that you gifted in your original Will that you no longer have or have replaced?
Have you purchased or acquired something new that you now wish to gift?
Do you still want to give a gift to someone named in your Will?

Second marriages: Is your Spouse & your Children protected?

You may want to ensure your Spouse can live in your property should anything happen to you first, but ultimately you want your children to benefit. If this is not mentioned in your Will then it may not happen the way you would like it to.

Funeral Wishes: Are they stated in your Will?

The statistics show that a large number of spouses, and loved one, do not know what their partner would like for their funeral as this is not a conversation that often comes up (and is regularly put off by many!). Putting your funeral wishes within your Will states clearly what your preferences are.

There are a number of other reasons why it is worth reviewing your Will.

If you read over your Will again today and confirm you are happy with it, it’s a good job well done. But, if it’s not the way you want it, it’s best to start thinking about getting those changes made.

It may also be a good idea to ask your parents or friends to check their own Wills to make sure everything is the way they want it too.

If you would like to have a free chat about your existing Will or making a new Will, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

Leah Waller

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15th April 202114th April 2021

How can I check that I have found all of the Financial Assets of the deceased?

How can I check that I have found all of the Financial Assets of the deceased?

A Financial Assets search will help to identify the assets of a deceased person, giving you (as an Executor or Administrator) the peace of mind and knowledge that you have fulfilled your duty and taken all the reasonable steps required to ascertain all of the deceased’s financial assets in order to distribute them.

The reasoning for doing a Financial Assets search may well seem obvious – we all want to ensure that ALL of our assets are passed to the right people upon our death, right? And how many of us have a list of where all our assets are held…and have made our loved ones aware of this?

Well, that right there is the first reason. However, in addition to this, here are a few scary statistics for you:

The number of UNCLAIMED assets increases each year;
It is estimated (by Inheritance Data) that there is £200 billion sat in dormant accounts across UK Financial Institutions;
Although Financial Institutions have returned £65 million in financial assets, over the past few years, this is nowhere near the full amount;

Not just this…it is YOUR ROLE & RESPONSIBILITY as an Executor or an Administrator to maximise the Estate assets for the beneficiaries.

What will a Financial Assets Search cover?

So, now you know just how important a Financial Assets Search is, perhaps we should take a look at exactly what the search covers.

When carrying out a Financial Assets Search, a request is sent to more than 200 Institutions, that search more than 350 databases for matches with the deceased details. The search remains live for a total of 50 days and in most cases the results will be returned within 28 days. However, it is important to note that the live search will continue for the 50 day period to search any existing accounts and assets of the deceased.

The search will cover:

Bank Accounts;
Investments;
Shares;
Department of Work & Pensions (DWP);
Personal Pensions;
National Savings & Investment (NS&I);
Life Insurance.

Over 90% of Financial Assets Searches uncover a lost account (Inheritance Data). This is a staggering amount and is likely to mean that the cost of carrying out the search is more than worthwhile!

What Information is required to carry out a Financial Assets Search?

If you are dealing with the administration of the deceased then you are likely to have all of the information required to carry out a Financial Assets Search, this includes:

their full name
their address;
their Date of Birth;
their Date of Death;
their Occupation;
their National Insurance Number;
The Death Certificate;
A list of the known Institutions that they held accounts or assets with.

The National Insurance number is not essential, or mandatory, but it helps to carry out a more enhanced and comprehensive search.

It is so important to ensure that you carry out your role as an Executor or Administrator completely and this includes ensuring that the beneficiaries inheritance is maximised and a Financial Assets Search may be required to ensure that you can discharge your responsibility as an executor or Administrator.

If you would like to have a free chat about your existing Will or making a new Will, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

Leah Waller

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18th March 202117th March 2021

Will the gifts made in your Will fail?

Will the gifts made in your Will fail?

For those of you that have a Will (gold star for you ;)) you may well have left gifts to specific people, or groups of people, to take place following your death.

However, sometimes these gifts will fail, this could be for a number of reasons, here we have a look at each of those reasons in a bit more detail to prevent this from happening to you…

The beneficiary (or their spouse or civil partner) of the gift has witnessed your signature on the Will

This is the most common reason that gifts in a Will fail. There are strict legal rules that state how a Will must be signed, and witnessed, in order for it to be valid and if these are not adhered to then part, or all, of the Will can fail.

Anyone that witnesses your signature (when attesting (signing) your Will) cannot benefit under your Will and neither can their spouse or civil partner. The remainder of the Will is valid but that gift will fail.

However, there are a couple of exemptions:

If a beneficiary was not married to the witness at the time the attestation took place, and later married the witness, the gift can still take effect;
If the beneficiary (or spouse or civil partner) was an ‘additional’ witness and the Will would still be validly executed without their signature and witnessing then their gift can still take effect;
If the beneficiary (or spouse or civil partner) does not attest the original Will making the gift, but attests a later Codicil to the Will, the gift can still take effect;
If the beneficiary (or spouse or civil partner) witnesses the Will but the gift happens under a Secret Trust, then the gift can still take effect.

This caveat has no effect in relation to a Privileged Will as a Privileged Will does not require witnesses.

You have since divorced, or the marriage or civil partnership has dissolved, between you and the beneficiary

Where you have made a gift to your spouse or civil partner and later divorce or dissolve the civil partnership, any gift that has been made to your former spouse or civil partner will fail. This is because your former spouse or civil partner will be treated as though they have predeceased you.

This is of course, unless there is something to the contrary stated within the Will, such as a Will being made in contemplation of a divorce, or dissolution of the civil partnership.

Lapse

If the beneficiary of your gift predeceases you then the gift will fail (unless, of course, you have considered this and made alternative provision within the Will in case of such a situation). Another way to prevent a lapse would be to leave a gift to a ‘class’ of beneficiaries such as, grandchildren or nieces and nephews living at the time of your death.

Ademption

Ademption occurs where the funds that you have stated to be given as gifts within your Will are no longer owned by you at the time of your death.

For this reason it is wise not to include funds from a specific bank or building society account as a gift as if this account is no longer held at the time of death the gift will ‘adeem’ and therefore fail. Similarly, with property it is wise to include a ‘catch all’ clause rather than a specific property as if that property is no longer owned at your death, the gift will fail.

Abatement

Abatement occurs if the Estate does not have enough assets and funds, after the payment of all the liabilities, debts and testamentary expenses, to satisfy the gifts within the Will.

If the Estate is insolvent and there are not enough funds to satisfy all the liabilities, debts and testamentary expenses, then all the gifts within the Will fail as all assets will be used to pay the liabilities.

If the Estate is solvent and the liabilities are all satisfied then the monies in the Estate are used to pay the liabilities and the remainder can be used to pay the beneficiaries, although this may be apportioned, depending on what is available after the payment of liabilities.

Uncertainty of the Gift

Gifts that are uncertain, vague or unclear could fail…or lead to a lengthy and very expensive court battle.

If you want to leave a gift within your Will, ensure that you are extremely specific with a description of that gift and specific about who you are gifting it to; ‘my daughter’ will not be appropriate where you have more than one daughter as it leaves it uncertain as to which daughter you meant.

The beneficiary disclaims their Gift

Yes, it happens a lot more than you may think…people really do refuse gifts given to them in a Will.

Just because you are named as a beneficiary in a Will does not mean that you have to accept the gift, you are free to disclaim the gift if you wish to do so. If this does happen the gift will fail and pass back to your Residuary Estate to be dealt with accordingly.

As you can see there are many reasons that a gift in a Will can fail (and not just limited to those that we have gone through here!) and so it is always important to take legal advice when drafting, and amending, your Will to ensure that your wishes can be carried out.

If you would like to have a free chat about your existing Will or making a new Will, please contact us on info@TotalLegacyCare.co.uk or 01727 865 121

Leah Waller

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