Please see a list of 'Frequently Asked Questions below. Please click the question link to see the Expat Wills Answer and explanation:
It is not yet clear whether the UAE courts will recognise Wills executed by foreigners as being effective to devolve real property in Dubai. Article 17(5) of the UAE Civil Code states that the Law of the United Arab Emirates shall apply to Wills made by aliens disposing of real property in the state. Consequently upon the death of the owner of a Dubai property, such property may be distributed according to the principles of UAE/Shariah Law. The issue is further complicated as real property purchased in joint names will not normally vest in the surviving owner, under UAE law. Consequently in some circumstances investors may wish to consider purchasing their Dubai property in the name of an offshore company. Shares in such companies can then be transferred in accordance with the provisions of the Memorandum and Articles of Association of the relevant company.
Domicile involves complex issues of law. An individual can be resident in more than one country at the same time, but can only have one Domicile. A person is generally domiciled where his or her permanent home is situated. A 'Domicile of origin' is acquired at birth, normally from one's father. The Domicile of a minor normally follows that of the person on whom he or she is legally dependant (a 'Domicile of dependency'). However, a 'Domicile of choice' can be acquired from age 16. This broadly involves leaving the current country of Domicile to settle in another country, and requires strong proof of having moved to the other country permanently or indefinitely. Living in another country is not conclusive evidence of an intention to change Domicile.
An individual who is Domiciled in the UK is liable to IHT on chargeable property on a worldwide basis. A non-UK Domiciled individual is also liable to IHT, but only on chargeable property in the UK. There is a separate rule regarding domicile, which applies for IHT purposes only. An individual can be deemed domiciled in the UK for IHT purposes if he or she was UK Domiciled at any time in the 3 years immediately preceding the time at which the question of Domicile is to be decided, or alternatively UK resident for at least 17 out of the last 20 years ending with the tax year in which a chargeable event takes place.
The Probate Service forms part of the Family Division of the High Court. It deals with a non-contentious probate business (where there is no dispute about the validity of a will or entitlement to take a grant), and issues grants of representation, either:
Probate (when the deceased person left a valid will and an executor is acting)
Letters of administration with will (when a person has left a valid will but no executor is acting)
Letters of administration (usually when there is no valid will).
These grants appoint people known as personal representatives to administer the deceased person's estate.
Current structure of the Probate Service
The Probate Service is currently made up of:
The Principal Registry in London
11 District Probate Registries
18 Probate Sub-Registries situated throughout England and Wales
There are also a number of Probate offices (usually a room in a court or local authority building) which staff attend, as necessary, to interview personal applicants
Without a Will the Courts will issue an order as to who will have control of your children and how your assets are invested should both parents die before the children reach 18.
There are two main provisions, therefore, you can make in your Will if you have children under 18 and wish to be in control of your affairs.
The first is to nominate who you would wish to have as their Legal Guardians, should both parents die before they reach the age of 18. You need only appoint one person, but it is normal to have two, perhaps a husband and wife. You can decide whether they are jointly responsible or, one is nominated a first choice, with the second in reserve, in case the first is unable to fulfil the responsibility.
Only parents with Parental Responsibility (PR) can appoint Guardians. A mother will always have PR unless this has been removed by the Courts, or the child has been adopted. A father who is married to the mother will automatically have PR unless this has been removed by the Courts, or the child has been adopted.
An unmarried father will not automatically have PR unless he was registered as the father after December 2003. If he is not registered as the father, or that registration took place prior to December 2003 he will not have PR unless it has been agreed by the mother. This can be arranged in a number of ways; re-registering of the birth, in writing, using a Parental Responsibility Agreement, or by marrying the father. Any agreement must be registered with the Principal Registry to be valid.
If the birth parents divorce they do not automatically lose PR, although a Residence Order is usually issued by the Court to determine where the child will live.
Within their Wills parents with PR can nominate their chosen Guardian but this will only take affect once both parents have died. It is important to choose Guardians who can, and will, bring the up the children as you would wish. Many people consider Grandparents of the children, because of the obvious closeness of the relationship, but consider their age by the time the children reach 18. A court would not normally appoint Grandparents.
It is obviously important to discuss, and agree, the appointment with your chosen Guardians and it is useful to document any particular points you need them to consider. In many instances this is a reciprocal agreement.
The second area is for your Will to appoint Trustees to manage your assets for the benefit of the children should both parents die before they reach age 18, or a later age should you wish. It can help the Guardians if one is also chosen as a Trustee.
The Trust created in the Will should grant powers to the Trustees to manage the funds for the benefit of the children, as you would wish if you were still alive. This can include payments for items such as schooling and the provision of housing, if required. It may be necessary to make provision for financial support to the Guardians. This can be in the form of a legacy in your Will to the Guardians, or via simple term assurance written in trust for the Guardians, or children.
The age at which the children can inherit in their own right is an important decision. It is usually between 18 and 25 and will decide on your view on when you feel they should accept responsibility for what can be a significant sum of money. Most parents choose 21.
However, the Chancellor, in his wisdom, stated in the 2006 Budget that if an age other than 18 is chosen, and the estate is liable to Inheritance Tax, taxes will be imposed on the trust. You will need to decide if those taxes are worth paying in order that you can choose the age you feel is most appropriate.
The people you choose as your Trustees must understand that they will be responsible for the trust until your children reach their inheritance age, so it can be a long-term commitment. As stated earlier it is usual to include a Guardian and it also quite normal for Executors to be Trustees. You will know the people you are choosing are in the best position to decide what is best for your children.
As we said at the beginning, without a Will, all of this will be decided by the Courts!!
There are a number of decisions you need to make before you can complete your Will, it is important to discuss these with each other and the chosen Guardians and Trustees before you commit them. Please do not hesitate to contact us should you need any advice, or a sounding board.
A Trust is a legal entity and so are you. Because you and the Trust are separate legal entities, anything you transfer from you to the Trust becomes property of the Trust. The Trust then holds the property for your benefit, or for the benefit of those whom you designate.
Please note that some Expat Countries do not all recognise the use of Trusts, your Will Writer will advise you accordingly.
Yes they can if you want them to. Today it is often common that those who will get the estate have a role to play in the organising of the estate before it is given.
Trusts are administered by between one and four trustees who are initially selected by the person creating the trust. Trustees can be other relatives, friends or professionals like a solicitor. Ideally trustees should be contemporaries of the son or daughter but finding suitable trustees is often a real difficulty. You are looking for a mix of personal interest in the welfare of your son or daughter and financial expertise. Professional trustees can be paid for their time but parents are often wary about how much these fees will deplete the trust fund. The trust can meet other trustees' expenses.
Payments are most commonly made by the trustees to provide things the state does not. It is usual for payments to be made as required and not regularly and as such are treated as capital rather than income for benefit purposes.
On the eventual death of the primary intended beneficiary of the trust any remaining assets can be distributed to other named beneficiaries or perhaps donated to a charitable organisation involved in supporting people with learning disabilities according to the terms of the will or trust deed.
Discretionary trusts are set up by parents or other relatives as a way of making long term financial provision for a disabled child. The reason a trust is useful is that assets once put in trust do not belong to either the donor, 'settlor' in legal jargon (parents) or the 'object' of the trust (disabled son or daughter who is intended to benefit). This means that the capital held in the trust is not taken into account when assessing entitlement to state benefits like Income Support or local authority obligations to fund care.
If parents leave a Will which says words like 'our son hereby inherits our worldly goods' and the goods amount to more than about £3,000 the effect will be to immediately take their son or daughter out of some Social Security means tested benefits. Local Authority (Social Services) support may also cease until the value of the inheritance falls below a threshold level. In addition if the disabled son or daughter is unable to manage money then the Court of Protection can get involved. They will appoint a person called a 'receiver' to look after the money and other assets. The receiver may not be the person the disabled person or parents would choose.
Trusts are used to pay for extra things which Social Security benefits may not fund, a holiday, new clothes, electrical goods, special equipment. Importantly a trust can also hold, manage and maintain the parental home if put into the trust.
Other reasons parents give for creating a trust to help provide some financial protection into the future include:
- fears that the local authority will not always continue to provide care or will provide insufficient care
- to provide a source of money to 'top up' what a local authority is prepared to pay for care or to obtain better quality or a different care package
- to enable a son or daughter to remain where they are rather that be forced to move
- to permit more choice and options now and in the future
Creating a Discretionary Trust
A trust consists of a few pages that cover such matters as:
- the purpose of the trust
- who the beneficiaries are - the object of the trust
- who the trustees are
- how new trustees, if needed in the future because a trustee dies for example or no longer wants to do the job, are to be appointed
- how trustees' fees and expenses are to be met
- what powers, duties and discretion trustees have including investing, making of payments and buying or selling property
- what happens to funds held in the trust after the prime beneficiary dies
It is important that trustees have reasonable discretion both to satisfy the legal requirements of a discretionary trust and to allow them to adjust to changing circumstances and legislation in the future. It may be for example that at some point the property will become unsuitable for the son or daughter who might be better off in sheltered housing or a different environment. Trustees need the discretion to sell the property and allow a move if this is in the beneficiary's best interests.
Parents are usually told to give trustees a letter setting out their wishes as to how trustees should act in the future and to seek trustees' agreement to follow the parents' preferences. This kind of letter is however for guidance only and is not legally binding.
A trust is usually brought into effect on the death of a parent (or other relative) as an integral part of the person's Will but a trust can be created at any time. Other relatives or friends can contribute to the trust. Alternatively, but less commonly, a trust can be created by drawing up a trust deed during the lifetime of the person (settlor) who wants to put money into the trust.
Characteristics of a Discretionary Trust
A discretionary trust is only one of many different types of trust but it is particularly appropriate for people with learning disabilities who will continue to need care and support. It is termed discretionary because the trustees appointed to administer the trust have discretion subject to the terms of the trust as to how, when and by whom the capital and interest of the trust are used.
The intended beneficiary has no right to either capital or interest and has no right to make claims for payments. If they did then Social Services and DSS might challenge the trust arguing the client/claimant effectively possessed the assets.
A further defining characteristic of a properly drawn up discretionary trust deed is that the intended beneficiary e.g. son or daughter belongs to what is termed a 'class' of people and is not the sole beneficiary of the trust. Thus the deed might say 'the trust is for all people with autism living in Wales' and the son or daughter counts as a beneficiary because they have autism and live in Cardiff.
In summary, under a discretionary trust - unlike some other forms of trust - the son or daughter has no absolute right to either the capital or investment income of the trust. Trustees have discretion about what payments are made, subject to the terms of the trust. The intended beneficiary is not the only possible beneficiary.
Parents are often reluctant to accept these defining features of a discretionary trust but they are essential if the trust is to be effective in providing long-term protection and there are not many alternatives.
It is also worth bearing in mind that not to make any provision at all for a disabled son or daughter on the grounds that another member of the family will look after them or that the state will provide may not be a wise course. This is because under the Inheritance Act (1975) if insufficient provision is made it is possible for Social Services and the Department of Social Security to challenge the will. In turn this can result in an unpleasant, unhelpful and costly legal dispute.
A trust is an obvious means of providing for a mentally disabled beneficiary. If a beneficiary is mentally disabled he cannot give a valid receipt for an outright gift made to him by a donor in his lifetime, or by a Will, and if assets are given outright to the beneficiary the property gifted will have to be administered by a receiver under the control of the Court of Protection. This can lead to unnecessary bureaucracy
Even if the beneficiary can give a receipt for the assets, it may not be advisable to pay them outright to him, since they may upset the beneficiary's rights to means-tested benefits. Some parents are tempted not to make provision for their disable children in their Wills for this reason, but if a parent fails to provide for a disabled child in his Will, so that the child is dependent on the state benefits, the child can make a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975.
Although it is perfectly possible to create a life interest trust for a disabled relative, the absolute right to the income will upset that beneficiary's claim to means-tested benefits. Consequently, a discretionary trust for the disabled should be considered
A trust for the disabled is a creature of statute and is a discretionary settlement which meets the requirements laid down by section 89 of the Inheritance Tax Act 1984. To qualify as a trust for the disabled, the trust must have a disabled person as one of the beneficiaries. During the life of that person, no interest in possession must in fact subsist in the capital of the trust, but not less than half the trust fund which is paid during the disabled person's lifetime must be applied for his or her benefit.
The section defines a disabled person as being a person who, when the property was transferred to the trust, is either:
a). Incapable by reason of mental disorder within the meaning of the Mental Health Act 1983, of administering his property or managing his affairs; or
b). Is in receipt of an attendance allowance under section 64 of the Social Security Contributions and Benefits Act 1992 or disability living allowance under section 71 of the same Act by virtue of entitlement to the care component at the highest middle rate.
Effects of Trust Payments
If a disabled adult child lives in a local authority accommodation, or is sponsored by a local authority in another form of accommodation, the local authority is obliged to recover the whole of the cost of accommodation from the resident, or that part which they assess the resident is able to pay.
If the disabled person has an absolute title to capital or income for whole or part of the trust these payments will affect the entitlement to support payments.
If the trust makes discretionary payments to the disabled person these are treated as voluntary payments and are only taken into account when they are made.
When a person dies somebody has to deal with their estate (money property and possessions left) by collecting in all the money, paying any debts and distributing what is left to those people entitled to it. Probate is the court's authority; given to a person or persons to administer a deceased person's estate and the document issued by the Probate Service is called a Grant of Representation. This document is usually required by the asset holders as proof to show the correct person or persons have the Probate Service's authority to administer a deceased person's estate.
There are several advantages of holding property in a trust:
- trustees can deal with all the management and maintenance of the property thus if the disabled person is unable to organise this or do it themselves or lacks legal capacity the problem of how to arrange maintenance can be solved
- if in addition money is put into trust over and above the property this can provide a fund to pay for repairs or upgrading the property
The trustees do not necessarily have to do all the maintenance themselves, they could contract with a local Housing Association or private agency for this service.
Note that the trust is not a legal entity so contracts are between the trustees collectively and the other organisation.
- beneficiary living in the house or flat may be able to claim Housing Benefit. The Housing Benefit Regulations amended by Statutory Instrument 3257 apply, which discourage this except when:
- the letting is on a commercial basis as any other private sector tenancy
- and the HB administrators must be satisfied that the arrangement is not made just to take advantage of the housing benefit scheme.
We can ensure you are taking full advantage of the options available
within your Will.
The vast majority of joint owners of property have a Joint Tenancy agreement. This is usually automatically arranged when the property is purchased, particularly if there is a mortgage. With a Joint Tenancy all parties to the agreement own the property jointly and on death the property automatically transfers to the surviving parties irrespective of the length of ownership or any other stipulation in a Will. In practice, this would normally be the family home purchased jointly and on death it would transfer to the surviving partner.
Changing Ownership from Joint Tenancy to Tenants in Common a Notice of Severance of Joint Tenancy must be agreed and signed by all parties. This agreement must then be registered with the appropriate Land Registry Office and any mortgage lender must be notified.
For couples living together where the property is registered in one name only the property will need to be transferred into both names to achieve the above. This is a straightforward legal transaction, the cost of which will be minimal in relation to the long-term benefits that could be achieved.
We can arrange change of ownership of your property, if appropriate to your circumstances, as part of our service to you.
In most estates today, it is common to appoint the Executors as Trustees. The main difference is that trustee is the person responsible for making the decisions that maintain the estate whilst it is held on trust before it is given to the beneficiaries, and the executor is the person that carries out (or executes) the actions and wishes of the Trustees during this time.
You can appoint anyone you like. It is likely however, that when your estate is going through Probate, that you will in some part require some professional assistance. Our advise is to choose people you absolutely trust and ensure that the Will includes a statement that empowers them to employ any professionals that have not already been nominated.
No, although it is always prudent to have some executors in the country in which you are residing.
You can have as many Executors as you like, but the Law only allows a maximum of four to act at the same time.
It is difficult to go into great detail here, but the main role of an Executor is to carry out the wishes of the testators estate. for more details see our section 'What Is Probate'.
It is very common for the guardians to be executors. It normally follows that if you trust someone to take care of your children, then they should have some form of access to the assets of the estate to provide for your children. It should also be mentioned that there are some instances where the Guardian (e.g. a divorced parent) should not be allowed direct access to the assets, but go through an alternative Executor.
No, Wills are not shopping lists. If you want specific objects, collections or even amounts of money to go to particular people, then yes you should list these. However, what you do not identify in your estate (everything else not listed - whatever it is) is dealt with through distribution of the Residue.
Not at all, A gift can be any value you like (e.g. £10,000 or your house etc.)
Yes, but we need to know the full Name, address and Registered number of the charity. All gifts to charities are tax free - so they can be used to reduce any Inheritance Tax liability.
Yes, this is what Trustees are for - to see that the gifts you leave are preserved as best as possible until they should be given at the time you have specified.
At the moment you and your husband have reciprocal Wills (commonly called mirror Wills), which means that when one of you dies, everything you own passes to the other. The first £300,000 (As of 06.04.2007) of each of your estates, known as the nil-rate band, is free of tax. However, transfers between husband and wife are exempt from IHT, which means that the nil-rate band on first death is wasted. The easiest way to reduce a potential IHT bill is to ensure that both of you use your nil-rate bands by creating a discretionary trust in your Wills. The survivor can be one of the beneficiaries and receive income or capital from the trust. To make this effective, you should each have personal rather than jointly held assets. You should also ensure that any life assurance policies are written into trust for your family. This way the proceeds can bypass your estate.
Only the birth parents (if married) of the child or children have 'parental responsibility'. This means that unless the father is married to the mother only the mother has an automatic right to appoint Guardians. If you make a Will 'Parental Responsibility' can be given through appointment of Guardianship to the birth father.
The National Health Service and Community Care Act 1990 came into force on the 1st April 1993. Ever since then elderly people with assets, but modest incomes, have been forced to seek ways of disposing of their property to put it beyond the reach of local authority care fees assessment.
The local authority will calculate the amount payable on the capital you have at the time you are taken into care. Your capital will include any buildings, land, shares and savings. If it adds up to more than £20,000 (£20,500 in Wales and £19,000 in Scotland) you will have to contribute towards the cost of your care. However, the local authority has the right to look at any assets you have given away and if it decides this was done to avoid future care fees, it can assess you as if you still owned the capital. If you gave your home to your children for another good reason, or at a time when you were fit and healthy and could not have foreseen the need to move into residential care, it is possible the local authority will not take any action.
Where the deceased has not left a Will your family would have to choose a representative for you to approach probate, to obtain, a grant of letters of administration, ensuring someone is appointment as the administrator for your estate. Your estate is then distributed under the rigid rules governing the Law Of Intestacy. This law, laid down in the Administration of Estates Act, applies irrespective of the amount of wealth a person owns at death.
In this instance the law does not allow any opportunity to consider any wishes the deceased may have had, even if those wishes appeared obvious and written down other than by a properly executed Will. In fact a Will written, but not executed correctly, could very well constitute that the deceased had changed his mind as to whom his beneficiaries should be.
No it is not possible to have a joint Will they must be individual Wills. However 'Mirror Wills' are quite common. A mirror Will is when a spouse or partner make almost identical Wills, or even identical Wills, leaving for example, everything to each other respectively should one partner perish and if both perish together then direct to children. If they have no children then to a named beneficiary's. This is where major differences often occur say, for example, the husband could leaves his possessions and estate to his siblings and the wife leaves her possessions and estate to her siblings.
Testators often feel anxious about this problem wanting to ensure adequate provision for the spouse but still feeling that if they died prematurely, and the survivor remarried, possibly having additional children, then his children would be deprived of what he would consider their lawful inheritance. This problem is often one of human relationships and is incapable of being satisfactorily resolved by legal formula.
A provision in a Will relating to remarriage would probably be ineffective as society does not prohibit cohabitation so any such clause could prove difficult to enforce. The solution available is a clause involving the use of a life interest.
It is always sensible to review the provisions contained in a Last Will, to consider if any change in your circumstances has altered the contents of your Last Will. Changes can be in the form of a variety of events. Here are just SOME of the events that would ordinarily require a change to your last will. Certainly there are other reasons.
1.If you marry or divorce
2.The birth or adoption of children
3.To add or change guardians for children
4.A significant change in financial status
5.The death of a beneficiary
6.A significant change in tax laws
7.A desire to add beneficiaries
8.A desire to change beneficiaries
9.The death or incapacity of a named executor or trustee
10.To change personal details like address changes for you or someone mentioned in the will.
Marriages revoke your will, except where the Will is written in anticipation of a specific forthcoming marriage.
Anyone who's last Will was made before his or her present marriage needs to make a new will at once.
Divorce change but do not revoke your will. They do however exclude the former spouse as a beneficiary, but not as executor, if the former spouse was an executor you may have problems. Divorce is always an occasion for making a new Will.
Yes. You can revoke your Last Will at any time by canceling it. This is done simply by destroying it or by making a new Last Will. A new Last Will dated and witnessed correctly automatically revokes or cancels any earlier Last Will made by you.
Yes. A Last Will and Testament only becomes legally valid after it has been signed and witnessed correctly. Two persons must be present when you sign your Last Will and they must not be beneficiaries. A witness must not, in any way, benefit from the terms of your Last Will. If a person does witness your signature to your Last Will, and if that person is a beneficiary of your Last Will, then that beneficiary will not be entitled under the terms of your Last Will to be a beneficiary. A witness must also be over eighteen years of age and be of sound mind. The witness is confirming your signature on the Will, but does not need to be aware as to the contents of your Last Will. If you are suffering from a disability and are unable to write your name, special clauses need to be inserted into your Last Will.
To be legally binding, two witnesses who saw you sign the will must, also sign your Last Will. The witnesses must be totally independent from the Will, (as stated above), over 18, and cannot be a beneficiary or executor of your Last Will, or the spouse of a beneficiary or executor.
A witness does not need to see the content of your Last Will, only witness your signature on it. They should clearly write their full name, address and occupation. Witnesses to your Last Will can be married to each other.
A Last Will is valid until the Testator revokes it by making a new one, or the Testator destroys it because he or she has changed his or her mind because circumstances have changed for them.
In certain circumstances, your Last Will may be changed after you have died. There may be problems in the interpretation of your Last Will, which may cause ambiguity, or the Last Will may be contested. A Last Will may be contested if there are members of your family who are of the view that they are entitled to a part of your estate, but have been omitted from your Last Will. It is for this reason that you should have your Last Will prepared by a professional. Frequently, DIY or homemade Last Wills fail because basic wording has been used, and or, in cases of interpretation, when it is not possible for your executors to understand exactly how they should administer your estate.
NO. A very important point to be aware of is that you must not alter your existing Last Will in any way. You must not cross portions out or add other words or blocks of text to it. You should not attach extra pages with pins, staples or clips. It is far better to prepare a new Last Will altogether and then destroy the old one.
With the changes in Inheritance Tax to allow both partners to a marriage, or civil partnership, to keep their Nil-Rate allowance it may be considered that Wills should be straight-forward.
However, there are many instances where it is essential to carry out detailed Estate Planning to ensure you achieve exactly what you wish from your Will.
A prime example is the case of second marriages where there are children from the first marriage and you wish them to inherit part, or all, of your estate on the second death of your new marriage. If all of the estate is left to the survivor on the basis that they will ensure the children from the previous marriages benefit on the second death you run the serious risk of this not happening. Many people do not realise that marriage is one way to revoke a previous Will. So, if your partner remarries after your death and does not arrange a new Will, the new spouse would inherit part, if not all, of the estate!
With Tenants in Common each person owns their own share in the property. This would normally be equal shares, but any percentage split is possible. Each party is then free to leave their share of the property to whomever they wish as part of their Will.
If the property is the family home and one partner dies leaving their share to, say, the children, the survivor could be forced to sell the home to honour the other partners Will.
To avoid this the survivor can be granted a Life Interest in the property, or any substituted property, as part of the Will. This would mean that the survivor could remain in their home, with the beneficiaries receiving their share on the death of the second partner.
Once a property is held as Tenants In Common, to support Trusts created by a Will, it is vital that any subsequent purchase is also as Tenants in Common; otherwise the Trusts will not work.
The advantages of Tenants in Common are explained in our fact sheets on Protecting Your Home, Protecting Your Family and Inheritance Tax Planning.