Cardiff Solicitors

Does divorce cancel a will ?

If you are considering or are in the process of divorce or separation you should immediately seek advice about making a Will, or updating any existing Will because until the  until the divorce is final all the terms of the Will remain valid and unaltered.

A Decree Absolute in divorce proceedings does not cancel a Will but if you already have a will leaving a gift to your former spouse, or appointing your former spouse to be an executor, then this becomes void upon divorce. The Will would remain in force and operate as if the former spouse had died.

I have children – should I appoint guardians for them in my will ?

Yes you do if you have any children under the age of 18. Your Will is the only place you can nominate your guardians so it’s very important to do so, not least to cover a catastrophic event where both you and the child’s other parent die together, such as in a car crash, or if the other parent predeceases you. Choice of guardians should be very carefully considered and it is always important to gauge the reaction of the nominated individuals, as they are not bound to consent.

I have assets and property abroad – how should these be dealt with in a will ?

Any property you own abroad should be disposed of by a Will made in the Country where the property is located.  You should note, however, that the value of the property will be taken into account when working out the value of your estate for the purposes of inheritance tax liability in the UK.

How can I revoke a will ?

A Will can be cancelled simply by creating a new will which will state that all previous wills are revoked. In addition, any current will is automatically cancelled by marriage or entering into a Civil Partnership unless the current will states it is not revoked by an intention to marry or enter into a civil partnership with a named partner.

If I have made a will or may make a will but do not yet have children or grandchildren will I have to make a new will each time I become a parent or grandparent ?

A will is generally drafted to include any future children or grandchildren so it is not generally necessary to amend a will every time you have a child or grandchild.

What are Executors duties & responsibilities?

An executor is legally responsible for carrying out the wishes of the deceased, as expressed in the will and to perform certain legal duties and formalities. Even on the most straightforward estate acting as an executor involves a lot of paperwork, letter writing and form filling. It is time consuming for an experienced professional and the time input  can realistically be doubled for an inexperienced person.

What are the most basic steps taken by an executor ?

• To register the death
• Obtain appropriate copies of the death certificate – the exact number will depend on how many assets need to be released or transferred.
• Arrange the funeral. The cost will usually be the first expense paid for from the Deceased’s estate. Most banks and building societies will pay the funeral bill before probate is granted.
• Make enquiries about the existence of a prepaid funeral plan – these are becoming increasingly popular.
• Apply for a grant of probate
• Executors have a legal obligation to pursue any debts owing to the Estate.
• Pay inheritance tax and any debts of the deceased
• Distribute assets
• Set up any trusts provided for in the will
• Executors must prepare and sign accounts showing who has received what from the distribution. All papers, including the Grant of Probate and the accounts must be stored safely for a period of 12 years.

Executor’s Personal Liability

Failure to correctly carry out the legal duties and procedures required can lead to an executor being personally liable to the estate, in circumstances such as:-

• Failing to safeguard assets, for example failing to take the necessary steps to preserve the value of a property
• Misappropriation of assets, for example where the executor uses the estate assets for his own personal circumstances rather than those of the estate
• Failing to submit correct tax returns either within correct timescales or with correct information and supporting paperwork
• Failure to place any relevant Trustee Act Notice(s)

When is a grant of probate needed  and who can apply ?

In some cases a Grant may not be needed for example where:

• The whole of the estate passes automatically to the surviving joint owner.
• The value of the estate is low.

Some banks and building societies may release sums of money up to typically £5,000,000.00 without a Grant. Instead they will ask for a Statutory Declaration to be sworn in front of a Solicitor. The policies on this matter vary from bank to bank, so you should always check with the bank concerned.  In terms of who can apply :-

• The Executor(s) named in the Will are the correct person(s) to apply for the Grant.
• If there are no Executors named or the person(s) named are unwilling or unable to act, then any of the residuary beneficiaries may apply for the Grant.

If there is no will the probate application will be for a Grant of Letters of Administration. The persons who can apply are only those allowed by law who, in the following priority, are :-

• Spouse / Civil partner
• Children (this includes natural and legally adopted but not stepchildren)
• Parents
• Brothers & Sisters
• Grandparents
• Uncles & Aunts

In order to apply for a Grant there are a number of documents that need to be completed and various information that needs to be obtained.