Making a Will

Understanding the process


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Making a Will was printed in April 2008. The information given in this leaflet is accurate at time of printing. However, 
things do change so it is important that you seek professional advice on your personal situation.

The text of Making a Will was drafted by Rob Marshall.

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Contents
 
Section 1.  Why make a will?
 
Section 2.  Wills for couples 

Section 3.  Intestacy and what happens if you do not leave a will
 
Section 4.  If you live in Scotland
 
Section 5.  If you live in Northern Ireland 

Section 6.  Choosing executors and trustees

Section 7.  Appointing professional executors and trustees
 
Section 8.  Choosing witnesses 

Section 9.  What do you own? 

Section 10. Property owned outside England and Wales
 
Section 11. Inheritance Tax
 
Section 12. Definitions of assets in a will 

Section 13. Trust funds 

Section 14. Drafting a will 

Section 15. Storing your will 

Section 16. Codicils and rewriting wills 

Section 17. Changing a will after death: deeds of variation 

Section 18. Wish lists and contact details 

Section 19. Mental incapacity 

Section 20. Living wills and advance directives 

Section 21. Useful contacts 


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This guide will help you prepare for the process of

making a will.The explanations of the often complex

issues relating to wills are brief but will give you a basic

understanding of what is involved.


Writing a will that accurately reflects your wishes, while at the

same time saving unnecessary taxes going to the government, is

not easy. It requires an extensive knowledge of an ever-changing

taxation system, and of the laws that apply to estates.


This guide highlights issues that you need to think about, some of

which may not have previously occurred to you. It highlights areas

in which you will need to seek professional advice so that you

end up with a will that accurately reflects your wishes.


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Section 1. Why make a will?


Peace of mind

Having worked hard to earn a living and to gather around you the

things you enjoy, you will want them to be appreciated by those to

whom you leave them.Writing a will enables you to plan what will

happen to your money and possessions (your estate), so that you

can live the rest of your life without worrying about the future.


Dying intestate (not leaving a will) may cause problems for those

who will have to deal with your affairs, because they may not be

sure of how you want your estate distributed after your death.

They will be obliged by law to deal with the estate and distribute it

in a particular way, which may not be what you would have chosen.


Avoiding disputes between relatives

Disputes over wills can drive families apart and are likely to

require the services of a lawyer to resolve them. Leaving a will removes

doubt about to whom you want to leave your money and property.


Giving pleasure to your beneficiaries

It can be hard for those who care about you to raise the subject

of your death, but if they do not know your wishes they may

worry about how you would like your estate distributed after

you have died. Deciding whom you want to leave your

possessions to (your beneficiaries) will give you the peace of

mind of knowing that they will go to the people you intended.

In fact, giving away some of your possessions now can be a way

of reducing the amount of tax that will need to be paid on your

estate. Some people decide that they would like to give away

various items sooner rather than later, to save Inheritance Tax.

However, it is worth seeking professional advice about this, to be

sure that it is what would suit you best.


Saving on Inheritance Tax


If you do not take professional advice about how best to plan

your financial affairs before your death, and leave a properly

drafted will, it is possible that some of your estate will go to the

government in unnecessary tax, especially Inheritance Tax.

The level at which Inheritance Tax is payable changes each year.

There may be some steps you can take now in order to reduce

the amount that will become payable on your death. For

example, it might be possible to change the way you own your

property.


Your funeral and what happens to your body


Your will is a good way of letting people know whether you

would prefer to be buried or cremated, the type of funeral 

service and music you would like at your funeral, and whether

you would like to leave your body for medical research or

transplants.

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Section 2.  Wills for Couples


If your husband or wife, or partner, outlives you, you will want

them to be able to continue life with as little disruption as

possible.This is particularly important if you own the property

you live in.Therefore, it is common practice for couples, whether

they are married or in a civil partnership, to make ‘mirror wills’:

these usually specify that the first to die leaves everything to the

other, or to the children if the person who wrote the will is the

survivor.


This can be achieved using a very simple type of will. It still

allows the partner making the will to make specific gifts to other

people and to take measures to avoid excessive Inheritance Tax

being taken from his or her estate.


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Section 3.  Intestacy and what happens if you do not leave a will


Intestacy means dying without leaving a legally valid will. If you do

not leave a will your money and possessions will be distributed

according to the intestacy rules laid down in the Administration

of Estates Act 1925, which could mean that people you were not

planning to leave anything to may inherit some of your property.

If you have no relatives the Crown (the state, in effect) is entitled

to take everything.


Many people assume that if you are married or in a civil

partnership your spouse or partner will automatically inherit all

of your estate when you die. In fact, they will probably inherit

only part of it, which may not be what you want.


If you die without having made a will, your estate will be

distributed as follows.


If you have a surviving spouse or civil partner:


(a) if you have no surviving children or other relatives, everything

goes to your spouse or civil partner.


(b) if you have surviving children, your spouse or civil partner

gets the chattels, which are personal belongings and

household goods including jewellery, antiques and paintings.

They will also receive the equity in the estate – up to a value

of £125,000 and a life interest in half the remainder of the

estate.This means that the capital is held for your children,

who will get it when your spouse or civil partner dies.Your

spouse or civil partner will receive the interest for as long as

he or she lives.The other half of your estate will be given to

your children immediately, or held for them in a statutory

trust until they reach the age of 18 (see below for information

on statutory trusts).


(c) if you have no children or grandchildren but your parents

outlive you, your surviving spouse or civil partner gets the

chattels, the first £200,000 of any savings or property, and half

the remainder.Your parents get the other half. If you have no

surviving parents, any surviving brothers or sisters will receive

their share unless they are under 18, in which case it is held for

them in a statutory trust (see below) until they reach that age.

Under a statutory trust, part of an estate (after the spouse

or civil partner has taken his or her fixed share) is held for

children or other beneficiaries until the death of the spouse

or civil partner.The spouse or civil partner receives the income

from the trust for life.These rules do not apply in Scotland or

Northern Ireland.


If you have no surviving spouse or civil partner, your children will

share everything. If any of your children have not survived, their

own children (your grandchildren) will inherit that share.


If you have no surviving children or other direct

descendants (grandchildren, great grandchildren etc.), your

estate will be inherited by your other relatives in the following

order:


(a) your parents
(b) your brothers and sisters of the whole blood, or their children if your siblings have died
(c) your brothers and sisters of the half blood, or their children if there is no surviving parent
(d) your grandparents
(e) your uncles and aunts of the whole blood or their children
(f) your uncles and aunts of the half blood or their children
(g) the Crown.


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Section 4.  If you live in Scotland


The advice in this guide about the preparation for writing a will,

and the lists of information that your will writer will need from 

you, is the same for Scotland as it is for England and Wales.This

also applies to the Inheritance Tax (IHT) system, where the IHT

threshold (£312,000 from April 2008) and many other factors

such as exemptions and the ‘seven-year rule’ relating to gifts and

legacies are the same. Some areas of the law and legal

procedures are different in Scotland:


* a child over the age of 12 can make a will
* an inheritance can be taken from the age of 16
* in accordance with the Legal Capacity (Scotland) Act 1991,
  when a child reaches 16 they no longer have a guardian and
  can receive inheritances, so, if you do not want them to take
  what they are entitled to at 16 it is necessary to set up a trust
  and to specify the age at which you want the child or children
  to inherit
* some of the terminology is different in Scotland, such as
  ‘probate’ (the administration of an estate), which in Scotland
  is called ‘confirmation’.


Legal rights in Scotland


In Scottish law you cannot totally disinherit your spouse or

descendants in a will. If you have surviving children they will be

entitled to a third of your movable estate – that is, everything

except land and buildings – and your spouse will be entitled to

another third.You can give the remainder to whoever you wish.

If you have no children your surviving spouse will receive half of

your movable estate. If your spouse or civil partner has died, your

children will be entitled to half of your movable estate.

A surviving spouse must decide if they wish to take their ‘legal

rights’ in the proportions detailed above, or to take what they

have been left in the will.They cannot take both.This does

not apply to property that passes outside the estate, such as

payments you may be entitled to from a pension fund, or an

insurance company bond.

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Section 5. If you live in Northern Ireland


In most respects, the laws relating to wills and probate in

Northern Ireland are similar to those in England and Wales.

Therefore most of the content of this guide will apply. However,

there are a few important differences.


* The Administration of Estates Act 1925 applies only to

  England and Wales.The equivalent in Northern Ireland is
  
  the Administration of Estates Act (Northern Ireland) 1955.

* Only executors living outside Northern Ireland, or who are

  incapable of dealing with their own affairs, can appoint
  
  someone to act in their place.Therefore, it is very important
 
  that you make sure that the executors nominated in your will

  are prepared to take on the role and are mentally and

  physically capable of carrying out the work.

* The system for transferring and registering property is very
  
  different from that in England and Wales. Details can be
 
  obtained from the Land Registers of Northern Ireland (see

  the Useful contacts section at back of this guide).

* The distribution laws relating to intestacy vary in that

  there are no life interests in Northern Ireland.Therefore,

  everyone entitled to a part of the estate receives their share

  immediately unless they are a minor, in which case it will be

  held in trust for them until they are 18.

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Section 6. Choosing executors and trustees


Executors are the people named in a will who will administer the

estate and make the application to the Probate Registry (local

sheriff court in Scotland) for the grant that allows the estate to

be distributed.Trustees are those responsible for looking after

any part of your estate that is put in trust for the benefit of

others.Trustees and executors are often the same people.

You should choose executors and trustees who know you well

enough to deal with your affairs in the same way you would have

done had you been alive, such as members of your family or

a younger friend.You could also appoint a representative of a

charity that offers an executorship service. Choose people you

trust, who could reasonably be expected to outlive you, and

who ideally have some knowledge or experience of dealing with

financial matters. It is normal practice to give them the authority

to consult and pay professionals out of the estate for the best

financial and legal advice.


This is particularly important if you have left assets in trust (for

example, to grandchildren under the age of 18), in which case

the trustees will have to co-operate with parents or guardians

in making financial decisions about the children’s welfare or

education, for example.


Your executors may be beneficiaries of your will but may not be

under 18 at the time of your death.


Being an executor carries great responsibility, so it is advisable

to let the people you have chosen know that you have nominated

them.You might also check that, if they are not professional, they

understand the full extent of their duties and responsibilities and

that they will be able to engage professional help (paid for out of

the estate), but that they cannot charge for their own time. Using

professional help is particularly advisable if the estate is likely to

incur tax.


Many people underestimate the amount of work involved in the

administration of an estate, and the importance of knowing and

understanding the tax rules.Also, it can be hard to find the time

to carry out the work, and to cope with the sudden extra

responsibility in addition to grief at losing a relative or friend.


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Section 7. Appointing professional executors and trustees



You may wish to consider appointing a solicitor, bank or

accountant as one of your executors. However, do bear in mind

that:

* the fees charged by solicitors, banks or accountants may be

  charged at a percentage of the estate, which may not reflect

  the amount of work involved

* if the administration of the estate is in the hands of a
 
  professional, the other executor (family member, for example)

  will have limited control over how efficient the professional is

  being. It is very difficult to take over the administration of an

  estate from an appointed executor.

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Section 8. Choosing witnesses


You will need two people to witness the signing of your will.The

will must be signed by you in their presence (both must be in the

room with you to watch you sign).


A witness cannot be a beneficiary, or the spouse or civil partner

of a beneficiary, nor can they be under 18 years of age.


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Section 9. What do you own?


In order to organise your affairs so that an appropriately worded

will can be drafted you need first to prepare a list of all the

property that you own, and the money, savings and investments

you have, plus any outstanding liabilities (mortgages, loans and

other debts).Take some time to complete the list opposite, so

that you create a clear picture of how your estate is made up,

which will help the person who writes the will to see where tax

could be saved.



Assets		Jointly owned		 Yours 		Spouse/partner’s

Land and property in England and Wales

Furniture

Personal effects

Motor cars

Bank accounts

Building society accounts

National Savings

Stocks and shares

Personal Equity Plans and ISAs

TESSAs

Life assurance

Superannuation benefits

Death-in-service payments

Interest in another estate or trust

Cash

Other assets

Property owned outside England and Wales

Totals

Liabilities		Jointly owned		Yours		Spouse/partner’s

Mortgages outstanding

Credit cards

Other debts

Totals

Net assets less liabilities


Every individual is allowed to give away gifts of money or

property to the value of £3,000 per year immediately free of

Inheritance Tax. List below any gifts you have made in the last

seven years. Larger gifts may also be made by Potentially Exempt

Transfers.

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Section 10.  Property owned outside England and Wales


If you live in England or Wales and own land or buildings

elsewhere, you must make sure that you take professional advice

about whether you need to write a will in that country, specifying

what you want to happen to your foreign property on your death.

However, the value of the property will be included in your

estate in the UK for the purpose of probate (confirmation in

Scotland). It is also of vital importance to say in your foreign

will that it relates only to property in that country, and also

to include a clause stating that it does not take precedence over

any will you have written in England or Wales.


The Law Society (see contact details below) can provide you

with details of solicitors who specialise in this area.


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Section 11. Inheritance Tax


Only estates above a certain value attract Inheritance Tax (IHT),

and the threshold is raised each year at the time of the Budget.


However, rising UK property values have brought the estates of

an increasing proportion of home-owners within the scope ofIHT.

The IHT rules are complicated, so it is important to take

advice from professionals when you make your will.


Rather than rushing to give away money or property in order to

minimise the tax, you need first to ensure that you have enough

for yourself, or for your partner in the event that you die first.

Your money, or the value invested in your property, if you own

any, might for example be needed to pay for long-term care when

you are older.


However, for those who are comfortably off and would like to

investigate the possibilities of minimising IHT, some of the key

points are briefly outlined below.


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Section 12.  The Inheritance Tax threshold or nil-rate band



Everyone is allowed to leave a certain amount before Inheritance

Tax is payable. For 2008–9 this amount, known as the nil-rate

band, is £312,000 throughout the UK.


For married and civil partnership couples, provided that at

least one partner was living on 9 October 2007, there will

be additional (now known as ‘transferable’) nil-rate band on the

death of the second of them if the first did not fully use his or

her amount.This is calculated by finding out what proportion of

the estate was not used on the first death. For example, if, now, on

a first death the chargeable estate (the amounts passing to anyone

other than spouse or civil partner and charities) is £156,000 and

the nil-rate band is £312,000, 50 per cent of the nil-rate band

would not have been used. If, when the second death occurs, the

nil-rate band has increased to £325,000, the second estate would

be entitled to its own nil-rate band plus a further 50 per cent of

the current amount (not the rate at time of first death):


i.e. £325,000 plus £162,500 = £487,500 in total.


In terms of practicalities, this means that clear records of the

figures involved on the first estate should be carefully kept so

that the claim to additional exemption can easily be calculated.

Without such records, problems could occur, particularly where

the first death occurred before 9 October 2007. It is highly

advisable to seek professional advice about Inheritance Tax issues,

as it is a very complicated area.


Gifts and transfers


If your estate is valued at more than the nil-rate level there

are many other ways by which you may be able to reduce the

amount of tax payable on your estate while you are still living.

For example, the following are free of IHT:


* gifts of money or possessions (£3,000 per year, and any

  number of smaller gifts of £250 or less);

* gifts made from your income and which are paid regularly;

* gifts to charities (see ‘Legacies’below).


If you go beyond these limits you will not immediately be liable

to Inheritance Tax on the gift, and you do not normally even have

to tell HM Revenue & Customs.


However, you will probably have made a Potentially Exempt

Transfer (see below) and there may be a tax liability on it on

your own death.


Note that a crucial condition that applies to all gifts, particularly

of property and land, is that they can be exempt from Inheritance

Tax only if you retain no beneficial interest whatsoever in the

gift: for example, you could not receive any profits from shares

you have given away.


Some gifts are only potentially exempt from Inheritance Tax;

only after seven years is no IHT payable.These gifts are called

Potentially Exempt Transfers (PETs). If you die within seven

years of making the gift a system called taper relief (reducing

tax liability) determines the amount of tax payable.This means

that if you have made the gifts in excess of the nil-rate band

(hence subject to IHT) and you die after three years, from the

fourth year the IHT liability is reduced by 20 per cent each year,

so that after seven years no Inheritance Tax would be due at all.

Great care is needed with PETs.They are not as straightforward

as they may appear, and it is possible that an apparent Inheritance

Tax saving may not be allowed as such by HM Revenue.


If you die within seven years of making a PET its value when the gift

was made will be taken into account in calculating the Inheritance

Tax on your estate.Taper relief applies after the third year, but

only if you have made gifts above the Inheritance Tax threshold, and

does not therefore have much application in practice.


It should be noted that gifts made in your lifetime take advantage

of the 0 per cent tax rate available within the nil-rate band.They

may therefore be free of tax themselves, but cause additional tax

to be payable by the beneficiaries under your will.


Giving away property


For most people their home is their most valuable asset, and the

one that brings many people into the Inheritance Tax bracket.

Your prime concern should be to safeguard yourself, and your

partner, rather than to minimise IHT for those who will inherit

from you. However, if your home becomes too big for you to

cope with, or deteriorating health means that you need to move

to another type of accommodation, you may wish to consider

passing it on to your children or grandchildren, unless of course

you decide to sell it and buy another property.


You can transfer the ownership of your main residence to

someone else, but there could be problems in the future if

you are still benefiting from it.This is not a problem if you have

moved to more suitable accommodation, but if you continue to

live there, even for fairly short periods, the gift of the property

will be subject to Inheritance Tax unless you pay rent at the

market rate to whoever you have given it to.


If you have a second home that you no longer use you may

consider transferring it to one of your children or grandchildren.

However, again, you must not retain any benefit from it.You can

still visit, but if you stay for extended periods any relief from

Inheritance Tax may be lost unless you pay a full rent for using it.

There will be implications for the beneficiary too; if they receive

an asset, such as a property, it could well affect any benefits they

were entitled to. It is therefore worth getting advice on what the

best arrangement will be.


This is also a complex area because although steps can be taken

to minimise Inheritance Tax, Capital Gains Tax can become an

issue.Always take professional advice before making any decisions

about what to do with property.


Assets not within your estate


Some assets will not be counted as part of your estate, and

therefore will not be subject to Inheritance Tax if you nominate

them to a particular person.These may include:


* payments from friendly societies

* death-in-service payments (although there can be exceptions)

* some National Savings if the nomination was made and

  registered before 1981.


It is important though to seek professional advice on this as it

can vary from scheme to scheme.


Insuring against Inheritance Tax


Many insurance companies offer policies to offset the amount

of Inheritance Tax that will be payable on estates.As with other

types of insurance, you pay a monthly premium while you are

living so your beneficiaries should have less to pay when you die.


In short, there are many ways of making tax savings but in

most cases there are stringent conditions, so you should seek

professional advice to make sure you are benefiting from all the

available allowances.


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Section 13. Definitions of assets in a will


Legacies are gifts of money or property left to someone in

a will.They can be left to either individuals or organisations.

Chattels are tangible, movable property such as the following:


* furniture
* works of art
* crockery, silverware, jewellery
* motor vehicles
* plant and machinery that is not permanently fixed.


Residue: The residue of an estate is everything that is left when

bequests and legacies have been distributed and any debts and

other liabilities settled.


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Section 14. Trust funds



Putting assets into a trust fund is a means of leaving part or

all of your estate to someone, or a group of people such as

grandchildren, while retaining control of the fund. It is also a

useful way of providing for the education of grandchildren.

Although there may be an Inheritance Tax liability it may be a

lot less than if you gave the money as a direct gift.
 

Trust funds are also an appropriate way of providing for relatives

who are disabled, or in need of support because they are not able

to look after themselves.


The people who look after the assets in trust are the trustees.

Ideally, they will work closely with the guardians, whose responsibility is the

general welfare, education and development of the beneficiary.

The person who drafts your will should help you decide on the

limits of the trustees’ powers and how much flexibility they have.

The aim should be to make enough money available through a

regular arrangement to look after the beneficiary’s general needs

while allowing the trustees the flexibility to allocate extra funds

if and when the guardians feel this is necessary. For example, a

disabled person may need to purchase medical equipment such

as a specialised wheelchair.


Types of trust


There are four main types of trust, all designed to cater for

different needs and with varying tax benefits.They are normally

defined as:

* bare trusts: These are very straightforward.The trustees

  hold whatever assets are in trust until the beneficiary reaches

  18 (or earlier if the trustees so decide).The beneficiary then

  has the right to take full possession of them.

* life interest trusts: In this kind of trust the assets, which

  may be property or money, are held for the eventual benefit

  of someone, but they will not receive the assets until the

  person with the ‘life interest’ (normally your spouse or civil

  partner) has died. If the asset is a property, you can give it to

  your children (for example), but stipulate that your spouse or

  civil partner is to be permitted to live there for the rest of his

  or her life. On his or her death, and after the payment of all

  taxes, the trustees will release the property or other assets to

  the beneficiary.

* discretionary trusts: These give the trustees general

  power to allocate the funds in trust at any time as they see

  fit, according to the needs of the beneficiaries. Or they can

  let interest accumulate and invest the capital so that the fund

  grows.The time (or age) after which the beneficiaries may

  have assets released to them by the trustees is specified in

  the will.

* trusts for bereaved minors: These have replaced

  accumulation and maintenance trusts as a means

  of passing on assets to children while retaining control of

  the fund. Prior to the April 2007 Budget it was possible to

  stipulate that children would not inherit until they reached

  the age of 25, but there may now be additional Inheritance Tax

  to be paid on larger trusts if you wish to postpone

  entitlement to that age.


Special trusts


Two special trusts are treated differently from the ones

mentioned above and have preferential taxation arrangements:


* charitable trusts for giving away large sums of money,

  where the trust qualifies as a charity.The charitable status
 
  needs to be approved by the Charity Commission.

* disabled trusts for looking after those who, due to mental
  
  incapacity, are not able to look after their own affairs.This

  kind of trust can also be used for the benefit of someone
  
  who qualifies for Attendance Allowance or Disability Living
  
  Allowance.



Taxation of trusts


How a trust is taxed, and what tax applies (Inheritance Tax,

Capital Gains Tax or income tax) depends on a number of

factors, such as the nature of the assets which make up the trust,

when the assets were put into trust, the value of other aspects of

the estate that may not be in trust, etc. Also, the income from a

trust fund, the interest on capital invested, and profit gained from

the sale of property in trust is taxable.There are strict rules to

ensure that trust funds are not used as a tax evasion tool, and

complex equations for calculating any tax payable.These are

beyond the scope of this guide and require professional advice.


Note that a gift to a trust is not a PET and may give rise to

immediate Inheritance Tax. It is very important to take

professional advice before making any gifts into trust.


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Section 14. Drafting a will



Choosing someone to write your will


To write an efficient will you need the advice that only a person

who is up to date with the relevant legislation and tax law can

give you.‘Off-the-shelf’ forms are available, but mistakes can be

made in filling them in, or important details missed out, and this

can cause problems for your beneficiaries after your death.


The possibilities include specialist wills and legacies advisers

who work for charities and solicitors who specialise in wills

and probate.The Law Society can provide you with a list of

solicitors in your area.


Whoever you employ to write your will, ask them to send you

a copy of their public liability insurance certificate and, if it is a

solicitor, their fees sheet, so you know what you will be paying.


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Section 15. Storing your will



Your will can be stored with your solicitor (who will usually

store it free of charge), or for a fee you can store it at the

Principal Probate Registry, at a will storage facility, or at your

bank.


It can take a while to get access to a will stored at a bank,

unless the executor has made face-to-face contact with the

bank in advance. However, it is safer than keeping the original

will yourself because it should not be stolen, lost or destroyed,

or read by anyone other than those who you want to see it.


If you do decide to keep the original will yourself, remember

to tell someone you trust where you have put it, so it can be

found when you die.This is very important, because if the original,

signed will is not found, your estate would normally be treated as

if you had died intestate and your assets might not be distributed

as you would have wished.The Probate Registry will normally not

accept a photocopy of a will.


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Section 16. Codicils and rewriting wills



You should review your will at least every five years to take

account of any changes that may affect it.There may be changes

that have occurred among your beneficiaries, for example, or to

the laws of wills and probate, or you may have changed your

mind about certain things since you first made the will.


You can make alterations to your will by writing a codicil – a

document that details any changes you wish to make to your will.

It should be kept in the same envelope as your original will.

You can use a codicil to increase or reduce legacies, create

additional ones, maybe to charities, and change executors if

circumstances have changed and the original executor is no

longer able, or no longer wants, to act.


To be effective, the codicil must be signed by you in the presence

of two witnesses in the same way as when you originally signed

your will.The witnesses do not need to be the same ones who

signed your will.You can make as many changes as you like, but

if you are making many amendments it may be better to draft a

new will.


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Section 17. Changing a will after death: deeds of variation



If you do not update your will in the few years leading up to your

death, there may have been changes in taxation or in your family

situation that you would have taken account of had you reviewed

and updated the will.This is very common, particularly when

people are very unwell or mentally incapacitated.


In certain circumstances a deed of variation can be drafted if

your executors can see that the will could have been rewritten

to reduce the amount of Inheritance Tax payable from the estate,

or that a tax benefit could be achieved by transferring some

assets to your grandchildren.The variations in the deed will be

regarded by the Capital Taxes Office of HM Revenue as if the

changes had been in your will. The executors of your will would,

however, have to gain the consent of anyone affected by the

changes, and, in the case of minor beneficiaries, a court order.


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Section 18.  Wish lists and contact details



It is a good idea to create a wish list, separate from your will,

giving those closest to you instructions about, for example, the

type of funeral you would like and where it is to be held, what

you would like to happen to your body, whether you want

flowers or donations to a charity, etc.You may also want to leave

a list of people or organisations that your executors will need to

contact when you die: for example, your bank, solicitor, and so on.

These wishes may also be in your will, but often people find it

easier to keep them separate.The reason for this is that if you

change your mind about these wishes you can simply update the

wish list, rather than having your will rewritten.


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Section 19.  Mental incapacity



Sadly, some people become incapable of looking after their own

affairs and someone, normally their next of kin, has to take over

their finances and look after them, or arrange for their care.A

person who is already mentally incapable cannot personally make

or change a will. However, a statutory will can be drafted by the

Office of the Public Guardian (OPG) on behalf of someone who

is not mentally capable of doing so themselves. It therefore makes

sense for people to deal with the possibility of future incapacity

while they are still able to do so.


Until recently, such situations were dealt with by signing an

enduring power of attorney (EPA).This was a simple document

which could either be made effective immediately or at such time

as the donor became mentally incapable of looking after their

own affairs.


EPAs were superseded in October 2007 by lasting powers of

attorney (LPAs).There are two versions of these: those relating

to property and financial matters, and those relating to personal

care and welfare matters.Any EPAs that were made before

October 2007 remain valid.


Although an EPA or an LPA is not part of a will, it is a natural

supplement to it. It can be arranged by the person drawing

up your will, who will also have the official information on the

duties of attorneys, what an EPA or an LPA is, and the procedure

for registering it.This information comes from the OPG, from

which you can obtain the necessary forms.


The Mental Capacity Act 2005 (effective from April 2007) governs

decision-making on behalf of adults who lack mental capacity,

both where they lose capacity at some point in their lives and

where the incapacitating condition has been present since birth.



It covers all decisions, including personal welfare and financial

matters, and covers decision-making on their behalf by attorneys,

or court-appointed ‘deputies’. It also clarifies the position if a

formal process has not been adopted.


Major changes in the roles and responsibilities of the Court of

Protection and the Office of the Public Guardian have come

about in the course of the replacement of EPAs by LPAs.


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Section 20.  Living wills and advance directives



A living will is used for telling relatives and doctors the extent

of the treatment you want if you become ill and whether you

want to be kept alive if you have an incurable illness or are not

expected to recover from an injury.You can express your wishes

in your will or write a specific ‘living will’. 


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Section 21.  Useful contacts



Help the Aged



The Charity has a unique Will Advice Service through which free,

confidential advice can be given to people of state retirement age.

Free advice is available from a team of locally based advisers

throughout England, Scotland and Wales. Trained to be aware of

issues affecting older people, they will explain the will-making

process in plain, jargon-free English or Welsh.They are not tax

consultants or financial advisers, but can point out ways of reducing

Inheritance Tax liability, including the use of trusts within a will.

The Charity also offers an executorship service. Should you use

this service, upon your death the local adviser will secure your

home, have valuables stored safely, register the death, make

funeral arrangements, clear the house (if required) and provide

practical, sympathetic support to those left behind.All the

financial aspects of administering your estate will be managed by

the Charity’s probate legal team. For more information on the

executorship service, please contact us using the enclosed form

or by calling 020 7239 1965.



Also available from Help the Aged: publications including

Planning for the End of Life and Planning for Choice in End-of-life

Care (the latter including information on living wills).To order

these or other Help the Aged publications, call 020 7239 1946.



Age Concern England

Astral House, 1268 London Road, London SW16 4ER

Helpline: 0800 00 99 66 Web: www.ageconcern.org.uk



British Humanist Association

1 Gower Street, London WC1E 6HD

Tel: 020 7079 3580 Web: www.humanism.org.uk



The Charity Commission

PO Box 1227, Liverpool L69 3UG

Tel: 0845 300 0218 Web: www.charitycommission.gov.uk



Citizens Advice Bureau

See your phone book for your local branch.

Web: www.citizensadvice.org.uk



Dignity in Dying

181 Oxford Street, London W1D 2JT

Tel: 0870 777 7868 Web: www.dignityindying.org.uk



Directgov

Web: www.direct.gov.uk

Directgov is an internet-based government information system

bringing together information on all public services.



Division of Basic Medical Sciences/Anatomy

Queen’s University Belfast,Whitla Medical Building,

97 Lisburn Road, Belfast BT9 7BL

Tel: 028 9097 2131

Contact if you live in Northern Ireland and wish to leave your

body for medical research.



Edinburgh Sheriff Court

Commissary Department, 27 Chambers Street, Edinburgh EH1 1LB

Tel: 0131 225 2525 Web: www.scotcourts.gov.uk



British Humanist Association

1 Gower Street, London WC1E 6HD

Tel: 020 7079 3580 Web: www.humanism.org.uk



The Charity Commission

PO Box 1227, Liverpool L69 3UG

Tel: 0845 300 0218 Web: www.charitycommission.gov.uk



Citizens Advice Bureau

See your phone book for your local branch.

Web: www.citizensadvice.org.uk



Dignity in Dying

181 Oxford Street, London W1D 2JT

Tel: 0870 777 7868 Web: www.dignityindying.org.uk



Directgov

Web: www.direct.gov.uk

Directgov is an internet-based government information system

bringing together information on all public services.



Division of Basic Medical Sciences/Anatomy

Queen’s University Belfast,Whitla Medical Building,

97 Lisburn Road, Belfast BT9 7BL

Tel: 028 9097 2131

Contact if you live in Northern Ireland and wish to leave your

body for medical research.



Edinburgh Sheriff Court

Commissary Department, 27 Chambers Street, Edinburgh EH1 1LB

Tel: 0131 225 2525 Web: www.scotcourts.gov.uk



Help the Aged

Wills and Legacies department

207–221 Pentonville Road, London N1 9UZ

Tel: 020 7239 1965 Web: www.helptheaged.org.uk



Hospice Information

Hospice House, 34–44 Britannia Street

London WC1X 9JG

Tel: 0870 903 3903 Web: www.hospiceinformation.info



Human Tissue Authority

Finlaison House, 15–17 Furnival Street, London EC4A 1AB

Tel: 020 7211 3400 Web: www.hta.gov.uk

Contact if you live in England,Wales or Scotland and wish to

leave your body for medical research.



Institute of Professional Willwriters

Trinity Point, New Road, Halesowen,West Midlands B63 3HY

Tel: 08456 442 042 Web: www.ipw.org.uk



The Land Registry

Web: www.landreg.gov.uk

For local office information look in your phone book or see

website.



Law Society of England and Wales

113 Chancery Lane, London WC2A 1PL

Tel: 020 7242 1222 Web: www.lawsociety.org.uk



Law Society of Northern Ireland

40 Linen Hall Street, Belfast BT2 8BA

Tel: 028 9023 1614 Web: www.lawsoc-ni.org



Law Society of Scotland

26 Drumsheugh Gardens, Edinburgh EH3 7YR

Tel: 0131 226 7411 Web: www.lawscot.org.uk



Mencap

123 Golden Lane, London EC1Y 0RT

Tel: 020 7454 0454 Web: www.mencap.org.uk



National Association of Funeral Directors

618 Warwick Road, Solihull,West Midlands B91 1AA

Tel: 0845 230 1343 Web: www.nafd.org.uk



The National Society of Allied & Independent Funeral Directors

SAIF Business Centre, 3 Bullfields, Sawbridgeworth,

Hertfordshire CM21 9DB

Tel: 0845 230 6777 Web: www.saif.org.uk



Natural Death Centre

12A Blackstock Mews, Blackstock Road, London N4 2BT

Tel: 0871 288 2098 Web: www.naturaldeath.org.uk



Office of the Public Guardian

Archway Tower, 2 Junction Road, London N19 5SZ

Tel: 0845 330 2900 Web: www.publicguardian.gov.uk



Probate and Inheritance Tax helpline

Tel: 0845 302 0900



Society of Trust and Estate Practitioners (STEP) Worldwide

26 Grosvenor Gardens, London SW1W 0GT

Tel: 020 7838 4890 Web: www.step.org



Solicitors for the Elderly Ltd

Room 17, Conbar House, Mead Lane, Hertford,

Hertfordshire SG13 7AP

Tel: 0870 067 0282 Web: www.solicitorsfortheelderly.com