FAQ

When it comes to the complex area of Estate Planning, I am sure you have many questions, but here are some answers to the questions I get asked most frequently:

Anytime. The main thing is that you have a will, because we do not know what might happen to us from one day to the next.

Be aware that if you get married you will need to update your will as soon as possible as marriage voids any existing will. That said, you should not delay in making a will if you are planning to marry. If you have children you should most certainly put something in place if you are planning a long engagement, and then update it with the new name and details afterwards.

I recommend that in almost all cases you should write a new will. The main reasons for this is that:-

1) there is a risk in the codicil contradicting too much the main will, leaving it open to misinterpretation, and

2) if the codicil was lost or removed, the amendments would be lost. If you are wanting to make an update to an exiting will that Middle Path Estate Planning has arranged for you, the update is not expensive.

That is entirely up to you. If you are local – within an hour’s drive I will happily come to visit you in your home to take your will instructions.
Or perhaps you would prefer a video-link call, which is just as effective (if the wifi is good enough) and will make you feel safer.

You will die intestate and your estate will be divided up as follows:

If you have a spouse or civil partner they will receive:

  • All your personal property and belongings, and
  • The first £270,000 of your estate, and
  • Half of your remaining estate if you had children, and the whole of the remaining estate if you did not.


If you have children, each child would receive an equal share of the half of the estate that is in excess of £270,000.

Also, if you have minor children and you have failed to appoint a guardian for them, and both you and the children’s other parent die, the Family Court will typically have to appoint a guardian and this may not have been the person you would have chosen yourself.

If you are under 70, I recommend you review your will (and LPAs) every five years. If you are over 70, you should do this every two years. Outside of the general rules you should review your will after every life event – births, deaths, marriages, house move, divorces, diagnosis of a terminal illness, or retirement.

If minor children inherit (i.e. under 18) a trust is automatically created by the will. The assets will be held for the children by your trustees until they reach 18. Should you wish to delay this further you would need to add a trust to the will. Delaying inheritance by using trusts can have important tax implications – advice should be taken.

You can think of a trust as being like a treasure chest which your Will drops your assets into. The people who have the key to the treasure chest are your trustees. Inside the treasure chest is a list of people who can benefit from your assets (even if is just your spouse or partner). Because the beneficiaries don’t actually own the assets in the trust, they cannot usually lose them.

You can ringfence your assets so that they can be used by your spouse, but they are protected for the next generation and passed on after your spouse’s death. This mitigates the risk of “Second Marriage Syndrome”, which is where the assets are lost to the spouse’s new partner’s family, either through deliberate disinheritance or by the laws of intestacy.

This arrangement can also prevent the use of your assets to fund your spouse’s care fees, meaning that local authority funding may be available to them, rather than the total depletion of the estate, which would leave nothing for your children. There are several other reasons for trusts, please feel free to discuss with me.

The first £325,000 of an estate in the UK is free of inheritance tax, after that the estate is subject to IHT at 40%. This is known as the Nil Rate Band (NRB). But whatever you leave directly to your spouse or civil partner (unmarried partners are not included), is inherited tax free and the NRB can be transferred to the spouse or civil partner to be used on their death, meaning the second spouse or partner to die has access to £650,000 NRB.

There are some important rules about how the NRB is applied, which will be raised with you if relevant to your circumstances.

Under current tax legislation there is a further NRB that can be used in addition to the first NRB if an estate includes a residence (a property that was owned and used by the deceased during their lifetime). This is £175,000. Again, it can be transferred to the surviving spouse on first death. It can only be used if a property is inherited by a direct lineal descendant (natural, adopted, stepchildren and grandchildren). Again the rules are complex and should be discussed if relevant.

Yes. Unmarried couples are at a huge disadvantage when it comes to IHT as they do not qualify for the Transferable NRB or RNRB. This means that on the second death the surviving partner is only entitled to their own NRB of £325,000. It is possible to use a trust to qualify your partner for the transfer of your partner’s NRBs, but it does require professional advice and planning.

There are several solutions. You can spend your cash. You can give it away through philanthropy or to family. You can insure against your inheritance tax bill using life assurance. You can invest in assets that are exempt from inheritance tax. You can invest more into your pension, which sits outside of your estate.

Private Client solicitors are fully legally qualified for matters of estate planning, but solicitors can be very expensive compared to will writers/estate planners. They tend to charge you for the time spent on your case, which can sometimes cause a large bill to be run up. Some solicitors will work on a Fixed Fee basis, but if so they are likely to be keen to “get the job done” so as not to go over their allocated budget . Will writers tend to work always on a Fixed Fee basis.  Not all will writers and estate planners are legally qualified, though some are, and they are not regulated. If you work with a will writer always make sure that they are a member of a recognised trade body (such as the Institute for Professional Will Writers), and they have been trained in wills and estate planning.

If you have a very large estate and very complex affairs it is likely better for you to speak to a Solicitor, but I will happily refer you on if I find this to be the case.

The legal team at APS Legal draft your will based on the instructions that I pass on to them. I then check the documents before I pass them on to you for checking. When we are all happy your documents will be printed and bound ready for signing.

Your estate will need to be taken through a process called Probate before it can be distributed to the beneficiaries. This is where the executors of your will secure your assets, obtain your death certificate, calculate and arrange for payment of any inheritance tax due.

We recommend you choose either a close family member (spouse, brother, sister etc), or a professional probate company, such as APS Legal, but not someone who is likely to predecease you. It is important that whomever you choose possesses the required skills and will have the time to undertake the probate work. More details can be found in this brochure.

It is often a good idea to appoint two executors on a joint basis, with one being the professional probate practitioner, who will do the majority of the work. It is also important to name a Reserve Executor in case the first Executor(s) are not able to act.

Firstly, and most importantly, your children’s guardians should agree to take on this role. It can be a couple, or a single person. Ideally someone who knows you and the children well. Someone who will be able to provide the children with the emotional support that they will need in the event of having lost their parent(s).

You will need to ensure that your will provides the guardians with the financial support to raise the children, or you may need to consider appointing guardians that could provide this themselves. You need to have peace of mind that the guardians will raise your children in a similar way you would raise them yourselves. I am always happy to discuss this with you and be a sounding board for you during your decision making.

You need two independent witnesses. An independent witness is someone who is not a beneficiary or married to or in a civil partnership with a beneficiary. They must also be over 18, have mental capacity and not be blind. Witnesses must actually watch the physical signing of the document.

Whilst new rules introduced during the Covid-19 pandemic do allow for witnessing through video technology, this is not recommended unless there is absolutely no other alternative.

Yes, they can. This is why the process of advice, instruction taking, signing and witnessing is so important. Also, if you deliberately exclude someone from your will who might expect to benefit, it is important to have a signed exclusion statement that is separate from the will.

This should give the reasons why that person has been excluded. It is not included in the will itself because the will is a public document and often the reasons for exclusion can be very personal and should remain confidential in order not to cause upset amongst the family members.

If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will. This is why it is so important to follow the signing and witnessing rules.

APS Legal offer a cost-effective wills storage facility. Alternatively you can store them yourself at home in a safe or a secure place where they will not suffer any damage. Make sure you tell your trusted relatives where your wills are stored. It is important not to staple or append any other documents to your wills, or to make any notes on them.

If an LPA isn’t in place before the loss of capacity, then it will be necessary to make an application to the Court of Protection. This is a very lengthy and costly process, which could cause untold damage to your or your close relatives’  financial position and/or health.

In essence, financial decisions will be very delayed and decisions about your heath and welfare will need to be made by health professionals or social services, rather than your close family.