FACT SHEETS & FAQs

Wills & Trusts

WILLS

Can I make a Will at any age?

You have to be at least 18 years of age to make a Will but there is no upper age limit.

As long as you have capacity, are over the age of 18 and understand the decisions you are making, then you can make a Will.

HOWEVER, if you are in the Armed Forces and on active duty, then you can make a Will from the age of 17.

When should I make a Will?

There is never a “right time” or “the perfect time” to make your Will.

Our advice…the sooner, the better! Life constantly throws up something new to deal with and we are always struggling for time, but once your Will is in place, you will have piece of mind.

You have to have capacity in order to make your Will and as none of us know what is going to happen tomorrow, if we wait for the “right time”, it may never come.

You may want to check out our article – When should I make a will? – for examples of circumstances and events in which we recommend that your Will is reviewed and/or updated.

Why should I have a Will?

Primarily, the reason we should all have a Will is to ensure that everything that you have worked hard for, goes to the people that you want it to!

Some of the other key advantages of having a will are:

–        to provide for children, whether that be in terms of care (by appointing guardians) or financially;

–        if you don’t have a Will then you have no choice as to where all your hard earned money, property and possessions go;

–        to protect and provide for those that are vulnerable or of a young age (creation of Trusts);

–        to help protect all of your hard earned money being used up by care fees;

–        to plan your estate to reduce your Inheritance Tax liability.

What is an Executor?

An Executor is the person, or people, that you appoint in your Will to deal with your assets and Estate following your death and so should be someone that you trust implicitly.

The main duties of an Executor include:

–        collecting in, and protecting, all of the assets into the Estate;

–        paying any debts, including the funeral expenses (from the Estate);

–        making arrangements for any property (including insurance);

–        distributing the Estate in accordance with the Will.

Who should I appoint as my Executor?

Your Executor should be someone that you trust implicitly and who is over the age of 18.

There is no right answer when it comes to who is best. The best Executor for you will be different to anyone else and so is very much an individual decision.

We can give you guidance and discuss this with you, but ultimately…you know best who it is that you can trust to act in accordance with your wishes.

You can appoint professional Executors, such as solicitors, as an alternative to friends and family and we can discuss this option with you if you would like.

Can I have more than one Executor?

Yes, and often it is a good idea to appoint more than one Executor as the role holds a lot of responsibility and can be time consuming. Additionally, if your Will includes a Trust then you will require at least two Executors.

You can appoint up to four Executors and you can also appoint substitute or replacement Executors in case those that you have appointed initially are unable or are unwilling to act.

Can I appoint someone as an Executor and a Beneficiary?

Yes! If you appoint someone as an Executor under your Will then they can also be named as a Beneficiary.

There is also the option to gift your Executor a sum of money, within the Will, in return for them carrying out their duty as Executor.

If I have more children, do I need to amend my Will so that they will benefit?

Not necessarily.

This will depend on how your Will is drafted but when we initially speak with you we will discuss your current circumstances and future plans and can always write the Will to take any future children of yours into consideration.

Can I choose the age at which my children will inherit?

Yes, when making a Will we can put restrictions in stating at what age your children will inherit.

A child cannot inherit until they are aged 18 but this is often increased to the age of 21 or 25 by parents within their Wills.

Can I provide for a disabled or vulnerable person in my Will?

Yes. Specific Trusts can be created to protect and provide for vulnerable individuals that will have no impact on their entitlement to state benefits.

Should my Will include the details of who I would like to look after my children?

Definitely! Your Will should include who you would like to appoint as your child/ren’s guardian should anything happen to you.

For more information on guardians, check out our articles on the appointment of guardians, their responsibilities and guidance on who you should appoint.

Can I deal with the assets that I have abroad in my Will that I make in England?

Your Will prepared here, in England, will generally only cover your assets in England and Wales.

We always recommend that if you are holding property or assets abroad, that you should seek legal advice from a specialist in that country to ensure that your assets are protected under that country’s specific legislation as this is likely to differ to the UK.

If you do prepare another Will, in another country to deal with your assets in that country, it is important to ensure that the Will does not conflict with your Will here, in England.

What happens if any of my Beneficiaries die before me?

In the unfortunate event that one of your Beneficiaries dies before you, and therefore before taking their gift under your Will, then your Will may well require updating and so your Will should always be reviewed at this stage.

Your Will may not require alteration if the Will provides for circumstances in which a Beneficiary predeceases you.

Do I need to think of every eventuality in order for my Will to be valid?

In short, no, none of us can predict the future (unfortunately!) and so although we can cover for some circumstances within the Will it would be impossible (not to mention lengthy and costly!) to provide for every possible eventuality.

We recommend that you review and update your Will throughout your lifetime, especially at milestone events but at least every 3-5 years (as a rough guide).

You may want to check out our article – When should I make a will? – for examples of circumstances and events in which we recommend that your Will is reviewed and/or updated.

Can I still make a Will if I struggle to read or sign my name?

Definitely! If you do have trouble with reading or writing, then please let us know and we can make adjustments and provisions to ensure that you can still put a valid Will in place.

Do I have to have my Will witnessed?

Yes.

In order for your Will to be valid you must sign the Will in front of two witnesses that also sign the Will to evidence that they have seen you sign the Will.

Who can witness my Will?

Your witnesses must be independent and cannot be someone that is going to benefit under the Will.

We can provide witnesses for a Will that is prepared by us and if you are unsure about who can act as a Witness please do let us know.

What happens to my Will once it is finalised?

Your Will is an extremely important document and so should be stored safely and securely but also in a place that your Executors and loved ones can find when they need to.

We are able to offer secure and fire-proof storage facilities for you if you do not want to store the Will yourself.

Can I make a new Will if I already have one?

Of course!

Just because you already have a Will does not mean that this cannot be updated.

None of our lives are simple and our circumstances are constantly changing. A Will is a working document and should be reviewed regularly – we recommend every 3-5 years, at the very least – in order to ensure that it still reflects your wishes and any update to your circumstances or family life.

If I don’t get around to making a Will, will my assets just pass to my spouse/partner?

Unfortunately this is not always the case!

If you and your partner are not married, then they will not have any automatic entitlement to your Estate or any of your solely owned assets.

Even where you are married, or in a civil partnership, there may be other individuals and dependants (children, former spouse/partner, children from previous relationships etc.) that could benefit from your Estate, having a negative financial impact on your surviving spouse.

If I get divorced, what happens to my Will?

Divorce does not revoke or invalidate a Will and so when you get divorced, your existing Will will remain in place.

Once divorced you should reconsider your Will and who you would like to inherit upon your death as this may change following a change in family circumstances.

What happens if I get married (or re-married) after making my Will?

Any marriage, whether your first marriage or a re-marriage, will revoke or invalidate any Will that you have UNLESS that marriage is specifically stated as expected within that Will.

What happens if I die without a Will?

If you die before making a valid Will then the Rules of Intestacy will decide where your assets go and how everything that you own is distributed.

If you die without a Will, this is known as dying intestate and you lose control as to where everything that you have worked hard for goes.

Having a Will ensures that your assets go to those that you want it to.

If you have any other questions, please do not hesitate to contact us on

01727 865 121 or Info@TotalLegacyCare.co.uk

TRUSTS

What is a Trust?

Trusts are a specialist area but, put simply, if your assets are placed in trust then they fall out of your estate and are controlled by the Trustees that you put in place for the benefit of another (the beneficiary) or for a specific purpose.

Can anyone set up a Trust or should I seek professional help?

As set out above, Trusts are a specialist area and so you should instruct a professional that understands how Trusts work as well as your specific needs and wishes in order that they can advise you as to the most relevant Trust for your circumstances.

At Total Legacy Care we have expertise in Trust work and the range of Trusts that are available and are always happy to have a free consultation with you to discuss your needs and requirements.

What assets can I put into a Trust?

This will depend on the type of Trust that you are creating.

Your family home, the property that you live in, property, savings and cash could be placed in Trust, depending what Trust you opt for.

A detailed discussion as to your assets, requirements and wishes is required before any Trust is created to ensure that you have in place what is best for your own circumstances, there is no ‘one size fits all’!

Why set up a Trust?

Some of the key advantages to setting up a Trust are:

–        can limit the amount you will pay in care fees;

–        assets and money that is in Trust may fall outside your Estate and therefore will not be included in the calculation for Inheritance Tax;

–        protects the assets (property or money) for young or vulnerable beneficiaries;

–         ensures your intended beneficiaries are provided for;

–        ensures access to the assets of the Trust at a time specified by you;

–        the assets within the Trust fall outside the probate process and so there is no delay caused in the distribution.

When is the best time to set up a Trust?

There is never a “right time” or “the perfect time” to set up a Trust.

Our advice…the sooner, the better! Once a Trust is created, you have piece of mind and the above advantages are taken care of. None of us know what is going to happen tomorrow and waiting for the “right time” may never come.

Are there ongoing fees associated with a Trust?

This will depend on whether you appoint your own Trustees or whether you appoint professionals to deal with the Trust.

If professionals are appointed to administer the Trust, then there may be fees associated with this for annual reviews and tax returns but all of this can be discussed prior to the Trust being created so that you can consider the best option for you.

Is a Trust expensive to set up?

Putting a Trust in place will incur additional fees than preparing a standard Mirror Will however, in order to truly assess the cost of a Trust and how expensive it is, this should be looked at in terms of the benefit and the potential savings.

Setting up a Trust can save, or limit, the amount spent in care home fees and with care fees currently averaging just under £30,000 per year for residential care and almost £40,000 each year for nursing care, the savings could be huge.

If I place my home into Trust can I move or sell the property?

You will still have rights to occupy the property and therefore sell/transfer and move in the way in which you were able before, however the Trustees will be required to sign the legal documentation. No additional work is involved and so any fees involved in moving or selling would be no different to when there is no Trust in place.

If I have a mortgage on my home, or on a property, can I still create a Trust?

Yes! A mortgage will not affect you creating a Trust.

If you have any other questions, please do not hesitate to contact us on

01727 865 121 or Info@TotalLegacyCare.co.uk

CARE HOME FEES

If I go into care would my house have to be sold to pay for the care home fees?

None of us relish the thought of having to move into a care home and most of us would hope that our family would be able to look after us at home but sometimes that is just not possible. With one in three women, and one in four men, having to go into care homes later in life, it is ever more likely that care home fees will be incurred.

If you do have to move out of your family home and into a care home it is a very real possibility that the home would have to be sold to pay for the care home fees.

However, if you have a Trust in place, this would assist in the amount payable to the care home and may prevent you (or your family) from selling your home.

What happens to the Trust if I don’t need to go into care?

If you are fortunate enough not to need to move into a Care or Nursing home, then the Trust will not be useless and wasted.

The Trustees that you have appointed to deal with the assets in the Trust will be able to take immediate action, if they want to, in relation to those assets and will not have the delay in waiting for a Grant of Probate thus meaning that assets and distribution of those assets can be done immediately and save on any costs of including these assets within the probate process.

Have more questions?

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