Wills, Trusts and Probate

A Will is the most important document you will ever make as it disposes of all the wealth you have accumulated during your lifetime; therefore, it is important to take proper advice. 

The best place to start is to gather details of your assets, liabilities, and family tree before considering who you would like to provide for. 

We can help guide you through this with our Will Questionnaire, which sets out the basics of what you need to make a Will. 

It is very important to make a Will as if you do not have one, your estate will be divided up according to intestacy rules, which often results in unwelcome outcomes. 

An executor can also be a beneficiary of a Will, but a beneficiary should not act as a witness of the Will; otherwise, they will not be entitled to their inheritance under the Will (unless the Will is still valid without their signature). 

A point to note is that an executor is usually appointed as a trustee. If the Will contains a discretionary trust, there may be a conflict of interest as the executor/trustee may wish to exercise their discretion and appoint all the Trust funds themselves. 

It is always prudent to consider carefully who should be appointed executor/trustee and, if possible, appoint more than one, as trustees must act unanimously. 

There are many grounds on which a Will can be contested. If the Will is contested on the grounds of validity, those issues must be resolved before the Will is proved at the Probate Registry. If a Will is contested on the basis that reasonable provision has not been made for them under the Inheritance Provision (for Family and Dependants) Act 1975, the person challenging the Will has six months from the date of the grant to make a claim.  

The Executors should wait nine months and one day before distributing the estate, as an application can be made within six months, but the individual has a further three months to serve the claim. Any distribution before that time means the estate's executors are at personal risk. 

If you survive seven years from creating a Trust during your lifetime and do not retain any benefit from the Trust, then the assets in the Trust will not form part of your estate for IHT purposes on your death. A Trust can be preferable to give assets away for IHT purposes without giving them outright to beneficiaries who may still be minors or vulnerable. It will allow you to retain control over how the trust assets are dealt with and applied if you appoint yourself as a Trustee. 

Trusts in Wills can also help to mitigate IHT. For example, suppose you own business assets or agricultural assets. In that case, you could leave these assets into a trust on the first death to maximise the available reliefs and exemptions, potentially resulting in an overall IHT saving. The Trust can also reduce the value of the estate passing to a surviving spouse, allowing your estate to qualify for other IHT reliefs, such as the Residence Nil Rate Band. 

In principle, anyone can be a Trustee if they are over 18 and have the mental capacity to act. A Trustee can be the person creating the Trust who wishes to retain control over the trust assets, a Beneficiary (but keep in mind a potential conflict of interest if other beneficiaries are not trustees), a professional person (they will be the most impartial but will charge for acting), any other individual, a company, or a limited liability partnership.  

It is important to choose Trustees carefully and trust they have the relevant skills to carry out their duties. You should have a minimum of two trustees and a maximum of four. Trustees must act unanimously, so they need to be able to work together. 

The administration of the estate consists of many elements, and much of it depends on what assets need to be dealt with, and the time it takes for third parties to respond. The initial steps to obtain the details of assets and liabilities at the date of death usually take several weeks. The next step is to prepare the application for probate, which involves completing an Inheritance Tax (IHT) form setting out the value of the estate. If IHT is payable, a longer form is required, and IHT will need to pay (or the first instalment) before HMRC issues a receipt for you to progress matters with the Probate Registry. Again, this stage will take several weeks. 

Once the Probate Registry has issued the grant, the Executors or Administrators can collect the assets and discharge an outstanding liability, including any tax, to the date of death and during the estate administration before distributing the estate. This stage can take a couple of weeks if the deceased's affairs were straightforward and consisted of straightforward assets such as bank accounts. If the estate consists of property or a business, finding a buyer can take much longer. Typically, an estate administration can vary from around six months to a year but longer if the estate is more complicated or there are disputes. 

At Myerson, we provide a bespoke service and advise you on your individual circumstances based on your priorities. 

As a guide, we find that mirror Wills without Trust are in the region of £1200 + VAT. 

If you require more complicated Wills containing a trust or further advice regarding estate planning or Inheritance Tax mitigation, our charges are from £2000 + VAT. 

Check out our probate service costs page for more details.