IMPORTANT INFORMATION FOR CREATING YOUR WILL
The current nil rate band (since April 08) is ?312,000 and every person has this entitlement.
A person‟s estate over and above ?312,000 is charged at 40% unless the beneficiary is exempt. Exempt beneficiaries include spouses, charities and certain political organisations.
thThe Government have announced a “transferable” nil rate band for spouses and civil partners for deaths on or after 9
The old law meant that the nil rate band of the first spouse/civil partner to die could be wasted unless they had made a nil
rate band discretionary trust Will or had left a nil rate band gift to a non-exempt beneficiary.
Now the unused nil rate band of the first spouse can be transferred to the surviving spouse‟s estate to reduce the Inheritance
tax on the second death. It makes no difference how long it is since the first death.
Although this is welcome news to families who have not taken advice it is just as important for individuals and couples
alike to take estate planning advice and to review their wills regularly. There are still situations why couples would still
need to include trust arrangements within their Wills. See note 4 below.
The following are the main types of Will and other legal documents we can prepare for you.
1. Single Will: This is suitable for a person who is single, widowed or divorced and ensures that the people they want
to benefit from their estate will do so.
2. Mirror Will: This enables a couple, whether married or not, to make provision for each other on the death of the
first of them and then direct their estate to the people they choose on the death of the survivor. This is suitable
where Inheritance Tax (IHT) is not an issue.
3. Severance of Joint Tenancy: Most couples own their home as joint tenants so that when one of them dies the
survivor automatically takes ownership of the whole property. To make maximum use of any trust arrangements, it
might be necessary to split the tenancy so that each party owns half of the property and this can then be dealt with
in their Will. Holding property in this way does not affect any mortgage or your continued use and enjoyment of
the property. If you need to consider any other changes to your assets, please consult a financial adviser.
4. Will Incorporating Discretionary or Other Trusts: It is possible to provide for a property or assets to be held in
Trust for someone to have use of them or benefit from them during their lifetime with those assets then passing on
to other beneficiaries. If provision needs to be made for a disabled child or relative, this can be done by means of a
Trust. (Please give details in the „Additional Information Section of the Questionnaire – point 9.)
There may be compelling reasons to include trust provisions in your Will :
o Couples may still prefer to “bank” the nil rate band on the first death or give the survivor the opportunity of
doing so. There may be further changes in the law.
o The nil rate band may not increase at the same pace as inflation. If assets are placed in trust on the first death
then any growth and the resulting tax burden can be removed from the survivor‟s estate for tax purposes.
o The transferable nil rate band is not automatically deducted on the second death. The personal representatives
(i.e. executors) must claim it within 2 years of death.
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o The surviving spouse may remarry. If the first spouse created a “nil rate band” trust there is a potential for
the combined estates to benefit from 3 nil rate bands (i.e. also of the survivor and second spouse) before tax
would be payable.
o The first spouse may have a business or agricultural property and a trust continues to offer additional tax
o You may want to protect assets for certain beneficiaries against the effects of divorce, bankruptcy, the
survivor‟s second spouse, or means testing for nursing home/care fees.
5. Lasting Power of Attorney (LPA): This document allows an individual to appoint people they trust to look after
their affairs should they become unable to do so themselves at some time in the future. Many people see this as an
associated part of the long term planning process when making a Will.
It can be drawn up at any time while you have mental capacity but has no legal standing until it is registered with
the Office of the Public Guardian.
The changes in the law came into effect in October 2007. The old style Enduring Power of Attorney can no longer
be made although those that were created prior to October 2007 can still be used.
There are now two types of LPA:-
Property and Affairs
This allows you to choose someone to make decisions about your money and property and to manage such affairs.
A registered LPA can be used at any time whether you have the mental ability to act for yourself or not.
This type of LPA allows you to choose someone to make decisions about your healthcare and welfare including the
decision to refuse or consent to treatment on your behalf and the decision as to where you live. These decisions
can only be taken once you lack mental capacity and of course the LPA must be registered.
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COMPLETING THE WILLS QUESTIONNAIRE
SECTION 1: To be completed in all cases.
As you are the person making the Will you will need to include full names.
A Will is usually cancelled by subsequent marriage but when making Wills for unmarried couples who have a
wedding date set your Wills can still be prepared which will remain in force.
It is extremely important that you advise us of any property held abroad and if you have a Will in that country.
We would strongly recommend that you seek legal advice from someone qualified in the law of the relevant
country regarding the inheritance and taxation position.
Your Will may not be effective to pass property you own which is located outside England and Wales. We do
not offer advice on foreign assets as part of our standard Will drafting service. If you inform us that you own
property abroad and that you require advice in relation to it, we will either provide such advice for an additional
fee or we will direct you to alternative specialist advice.
SECTION 2: To be completed in all cases.
The executors are the people who deal with your estate and distribute your assets according to your Will. They
will also be responsible for dealing with any Trusts set up under the Will. You should therefore appoint people
you trust and feel would be able to do this. Up to four executors can deal with your state and if you require a
Will including IHT planning trusts, we would recommend at least two other executors in addition to your spouse
if you are not appointing a professional executor.
Please tick the appropriate box provided to indicate if your spouse/partner/fiancé is to be an executor.
Please give the full names, addresses and relationship of other executors you wish to appoint.
SECTION 3: To be completed if you have minor children.
If you have children under the age of 18 you should appoint guardians to look after them if you and your
spouse/partner/fiancé die. Your Will can pass parental responsibility for your children to guardians of your
choosing. Please give the guardian‟s full name, address and relationship.
If you wish, you can also appoint reserve guardians just in case your first choice guardians are unable to act for
SECTION 4: To be completed if you wish to make gifts of personal items or fixed amounts of cash.
If you wish to leave gifts of personal items and are happy to give informal instructions to your executors to carry
out your wishes after your death as indicated to them in any letter or note (please tick the box at section 4a). This
has the advantage that the instructions to your executors can be changed without changing your Will.
If you wish any personal items you want to give to be listed in your Will, or if you wish to give a fixed cash
amount, please give details in section 4b. The full name and address of the person to receive the gift, their
relationship and details of the gift must be given. If it is a gift of a personal item, this should be described as
fully as possible, eg. „my late grandfather‟s gold pocket watch‟ rather then just „my watch‟, so that this can be
easily identified by your executors without confusion.
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If the gift is only to be made if your spouse/partner/fiancé has already died, please tick the relevant box. The gift will be included in both Wills but can only pass to the beneficiary on the death of the survivor.
It is possible that your estate will be subject to inheritance tax on your death and that the amount of tax charged will depend upon the nature of the provisions contained in your Will and on whether you have made any gifts within the last seven years of death. For this reason advice on inheritance tax is commonly a feature of a comprehensive Will drafting service unless expressly excluded.
SECTION 5: Complete this section if you want to include trust arrangements in your Will
Please read the notes on the instruction form giving details of why a trust might be appropriate in your situation.
If you are unsure then just let us know your concerns and we can discuss this further with you.
If you hold your property as joint tenants and need to utilise the value of your property to maximise the effectiveness of any Trust or IHT planning, please tick the box requesting severance of the joint tenancy. If you have more than one property for which this is required, please give details of any additional property at the Additional Information Section (point 9) of the Questionnaire.
SECTION 6: To be completed in all cases.
This is where the main beneficiaries of your Will who will receive the residue of your estate should be shown. The residue includes everything remaining in your estate after payments of debts and expenses and any other gifts made in your Will have been distributed.
Please tick the appropriate box to indicate if your estate is to pass to your spouse/partner/fiancé if they survive you. If this does not apply then please tick the appropriate box.
If you are single, or after the death of your spouse/partner/fiancé, your estate is to pass to your children, please tick the relevant box and complete Section 6a.
If you do not have a spouse/partner/fiancé and your estate is to pass to your children, please tick the relevant box and complete Section 6b.
You can name your children or, if it is possible that you might have more children in the future, the names can be left blank and the Will is worded to include all of your children living at the time of your death. Please specify the exact relationship of named children, eg. if they are sons, daughters or step children.
If no age is specified, children will inherit on attaining the age of majority, ie. currently 18 years. If they die before attaining that age, their inheritance will form part of their estate. Alternatively, an age can be specified which can be greater than 18 years if required. If they die before reaching that age, their inheritance will pass under the terms of your Will.
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If the gift to children above is not appropriate for you then other beneficiaries, ie. either relatives, friends or
charities, can be named in this section. The full name, address, relationship and share of the residue of your
estate they are to receive must be shown.
Here you can name beneficiaries who will only receive anything from the residue of your estate if all of the
previously named beneficiaries have died. This is not necessary in many cases but should be considered if you
and your other beneficiaries, particularly children, are regularly together especially when travelling. Full names,
addresses, relationship and share they are to receive must be completed.
SECTION 6d: To be completed if you are excluding anyone from your Will, are in business or wish to leave
direction for your funeral arrangements.
Exclusion : Here you can enter details of any people you wish to deliberately exclude from your Will and give details of any business interests you may hold.
The Inheritance (Provision for Family and Dependents) Act 1975 may enable certain persons to seek provision
or additional provision out of your estate after your death. If an application is made under this Act it is likely to
involve your estate in expense and may result in a variation of the dispositions made in your Will.
You must give us details of any dependents or family. If the information you provide to us for the purposes of
preparing your Will suggest there is a real risk of an application being made against your estate, we will advise
you that this is the case. However, we will not offer more detailed advice in relation to the 1975 Act unless you
ask us to do so and, in those circumstances, an additional fee will be charged.
If you decide not to include someone in your Will as a beneficiary who may normally expect to be included,
such as a spouse, partner or child or anyone you support financially, then please give details here. If you wish to
provide additional information about the reason for the exclusion which might be useful should a claim be mad
against your estate by that person, please give details in the Additional Information Section (point 9) of the
Business: Please indicate if you own a business, either as a sole trader, a partner or shareholder in a limited company. It is most likely that you will need to speak to Claire Fountain to ensure proper provision is made in
your Will for your business interests.
Funeral Requests: It is important that your family know of any particular wishes you have with regard to
funeral arrangements and these wishes can be included in your Will. Please indicate whether burial or cremation
is preferred and give details of any other requests.
SECTION 8: To be completed if you wish to have a Lasting Power of Attorney (LPA) prepared.
An LPA gives authority to the people you choose to look after your affairs on your behalf should you want them
to. For instance, if you become physically or mentally incapable of doing this yourself.
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Your LPA will give your attorneys general power to use your money or property to make any provision that you might be expected to make, both for you and for others including themselves. You can also make an LPA that will give your Attorneys the power to make health and welfare decisions in the event that you become mentally incapable of making those decisions for yourself.
If you want your spouse/partner/fiancé to be one of your attorneys, please tick the relevant box.
Please give the full names, addresses and relationship of any additional attorneys. Up to four individuals may be appointed to act as attorney. We would suggest appointing at least one other attorney in addition to your spouse/partner/fiancé (this is necessary where you own land jointly with your spouse/partner/fiancé).
Where more than one attorney is appointed, you must indicate whether they are to act jointly or jointly and severally. If they are to act jointly, all of your attorneys must act together to do anything for you. If they are appointed jointly and severally, they can act together but any one of your attorneys can also act separately for you. This is often more practical as it can sometimes be difficult and take longer to get all of your attorneys to sign documents and carry out transactions on your behalf.
You can name substitutes to step in and act if the Attorneys chosen to act first become unable to do so.
The LPA for property and affairs can come into force immediately although the Power would need to be registered before use.
The LPA for health and welfare issues would only come into force if you became mentally incapable. It also needs to be registered before use.
Please give any information that you feel might be useful to the Will writer in order to ensure that your Will is prepared to carry out your wishes accurately or to clarify any information given elsewhere if required.
If you have circumstances in which you feel any of the other Trusts mentioned earlier might be suitable, please give details here.
DECLARATION: To be completed in all cases.
The declaration must be signed and dated before we can proceed with the preparation of your Will. It is your responsibility to ensure that the information which you provide to us is accurate and up to date.
EXECUTION OF THE WILL:
When we have prepared your Will in accordance with your instructions we will send a draft to you for your approval. It is important that you read all its provisions carefully so as to make sure that you understand its contents and that it complies with your wishes.
In order to be valid, your Will must be executed in a particular way. Written instructions for the execution of your Will shall be sent to you with the draft Will. If you have any difficulty understanding those instructions, or in any even you would prefer our firm to supervise the execution of your Will, then please inform us of this fact and we can make the necessary arrangements.
In order to remove any risk that your Will is not properly executed, we do recommend that you bring your Will into our office and request our supervision service.
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STORAGE OF WILL:
If you wish this firm to hold your executed Will on your behalf then please return it to us after you have
executed the same. If you have not returned the executed Will to us within 28 days of our having sent the draft
to you for execution, we will assume you have either not executed the Will or that you intend to keep the
executed Will within your own possession. We do not charge for storage.
WHAT TO DO NEXT:
If you have returned your executed Will to us we will store the same until you let us know you wish to amend it
or, alternatively, we are informed that you have created a revised Will with an alternative company. If the later,
then we will return the voided document to you for your destruction.
It is important that you let all executors and attorneys know where your Will is stored (either with us or in your
own personal safe place).
Please be aware that Wheltons is not authorised by the Financial Services Authority to provide financial advice,
however, we are included on the register maintained by the Financial Services Authority. For further information
about this please access their website at www.fsa.gov.uk/register. If you require financial advice, please speak to
your independent financial adviser.
If, after executing your Will, you marry (or remarry) your Will will be revoked or, if you divorce, gifts made in
your Will may be ineffective. Other changes in your personal circumstances or changes in the law may affect the
appropriateness of the effectiveness of the provisions in your Will. We do not review the terms of your Will after
it has been executed unless you ask us to do so. If you do request that we review your Will, there will be an
additional fee for this service.
We suggest that a Will is reviewed every four to five years to ensure that it is up to date. However, if big
changes in your life occurs (eg. marriage or remarriage, a beneficiary or executor dies) then you should update
your Will as and when those changes happen.
If you have any queries with the Wills process, then please do not hesitate to contact
Claire Fountain who would be happy to assist.
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162 High Street Guildford
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