Wills, Trusts and Estates FAQs

Making a Will
What is a Will and why do I need one?
A Will is a legal document that allows you to specify who should benefit from your assets eg your property, money and possessions, after you’ve died. It’s very important that the wording used in your Will is clear and legally effective.

If you die without a Will in England or Wales you will die ‘intestate’ and the law will decide who gets what (which may not be who you would wish to benefit). If you have no living family members, all your possessions and property will go to the Crown.

If you die Intestate and are not married to or in a civil partnership with your partner at the date you die, your partner will not be entitled to receive any part of your estate under the Intestacy Rules.
Making a Will
What are Executors of a Will?
Executors are the people you name in your Will to carry out the wishes in your Will after you die.

They will be responsible for all aspects of sorting your affairs after you’ve passed away such as notifying people that you have died, helping to arrange your funeral, dealing with any outstanding bills, paying debt and any Inheritance Tax, collating information about your assets and liabilities and then distributing your estate to your chosen beneficiaries.
Making a Will
Does my Executor need to be involved with the Will writing process?
No, your Will is your own private document. Some people choose to tell their Executors that they have been appointed & might also inform them of practical information such as who they bank with and funeral wishes. Others choose to detail this information in a letter stored with their Will.
Making a Will
Who can be an executor of a Will and can they also be a beneficiary?
Family members, friends or anyone else benefiting from your Will can be an Executor, as long as they are over 18 years old.

As an alternative, you can appoint a firm of solicitors such as Tollers to be your executors.

This means you can rest assured that your estate will be correctly administered when you pass away.

Tollers offer a Professional Executor Service, which is a popular option with people who don’t want their loved ones to have to deal with all the legal and financial responsibilities of dealing with their Estate after they have gone.
Making a Will
How does getting married or entering into a civil partnership affect your will?
Marriage/civil partnership will revoke (cancel) your existing Will unless you have included a contemplation of marriage clause.

Therefore, as part of your marriage/civil partnership preparations you must make a new Will to control who is to inherit from your estate on your death.
Making a Will
What does it mean to make a will ‘in contemplation of marriage’?
This is an exception to the rule that your Will is automatically revoked on marriage/civil partnership. Including a contemplation of marriage clause will ensure your Will is both valid before and after your marriage to a particular person.
Making a Will
What If I have young children?
When creating a Will, one of the first things to consider is the guardianship of your children.

If you currently have Parental Responsibility over your children and they are under 18 years old, then you can include in your Will the appointment of a Guardian to look after your children if you were to pass away whilst they are under 18 years old.

This takes effect only if there is no one else with parental responsibility over your children when you pass away. The importance of appointing a Guardian is one of the main reasons why parents make sure they have a valid Will in place.

You can also include your children as beneficiaries in your Will even though they are very young. When this occurs it is sensible to consider the age you would like your children to reach before being able to access their inheritance, typical ages are 18, 21 or 25.

Whilst the child is under that age their inheritance is managed on their behalf by people called Trustees. These are people that can also be appointed in your will.
Making a Will
I have a disabled child who will need looking after once I die and I do not want them to receive a large capital sum, can you help me?
There are different ways of leaving money to a person with a disability. We can advise you about the different options available.
Making a Will
Can I use my Will to protect against care fees?
It’s possible. You may be able to protect your Estate by using a Trust in your Will. It is a specialised area and is vital you get professional Will Writing advice to ensure it is appropriate for your circumstances.
Making a Will
How often should I review my will?
If you are unable to sign your will, it can also be signed on your behalf, as long as you are present and it is signed at your direction. However, you must have the mental capacity to make the Will, otherwise, the Will is invalid. Any Will signed on your behalf must contain a clause saying you understood the contents of the will before it was signed.

Having dementia, a brain injury or mental illness, does not automatically stop you from being able to make a Will. It will depend on whether you satisfy the legal test for having the necessary mental capacity to do so. During our meeting we would evaluate your mental capacity and, if necessary, we may recommend and assist you in obtaining a mental capacity report prepared by an independent third party.
Making a Will
Where should I keep my Will?
We store the original Will that you write with us completely free of charge. Tollers also register your will with Certainty, the National Will Register, the Law Society’s endorsed provider free of charge too.

If you have a question regarding Making a Will or would like more information regarding making or changing a Will…Talk to Tollers on 01604 258558, our experienced Trusts and Estates teams are on hand to provide you with the answers and guide you through the process.
Trusts and Estates
What is T&E Law?
This is a term used to describe “Trusts and Estates”, also referred to as “Private Client”. It encompasses legal matters such as Wills, Powers of Attorney, Trusts, Court of Protection and Deputyships, Probate and Estate administration on death.
Trusts and Estates
What do trusts and estates lawyers do?
We deal with a range of issues that affect your “estate”.

This may include the creation and management of lifetime trusts; drafting Wills (including Wills with trusts); creating and registering Powers of Attorney; acting as professional Attorneys and Deputies when managing estates for those who are alive; dealing with inheritance tax and retirement planning; administering estates for those who have passed away, including obtaining Grant of Probate or Letters of Administration and ensuring beneficiaries receive their inheritance.
Trusts and Estates
Who owns the property in trust?
Property in a trust is managed by Trustees – these are individuals left in charge of how the Trust is run.

The people who are entitled to the benefit of the property in the Trust may be different individuals, referred to as Beneficiaries. The trust assets are held by the Trustees in accordance with the terms of the Trust, but they are not owned by the Trustees in their personal capacity.

The Trustees are effectively custodians of the Trust property for the time that the Trust is in existence.
Trusts and Estates
What is the difference between a trust and an estate?
A Trust is an arrangement that determines a specific way of managing assets. It is created either by circumstances or a specific legal document that states how the assets should be managed and by whom.

An estate is the term used to refer to everything which is owned by an individual.

This may comprise of bank accounts, shares, investments, household items and property. A person’s estate is everything they own and have the right to benefit from or enjoy.
Trusts and Estates
What are the advantages of putting your house in a trust?
Gifting your property outright to family members is very risky and does not have any practical benefit as it does not protect you from care fees or from inheritance tax. In fact, you risk losing your home if the person you gifted it to passes away, loses mental capacity, becomes bankrupt or gets divorced. Instead, Asset Protection Trusts can be more protective and can ensure that your house can be used and managed in a way which you can dictate within the trust. In a way, Trusts can help you to control how assets are managed after you have given them away. This may have the effect of ring-fencing your property from other assessments (e.g care fees) but please note this is not always effective and depends on the circumstances. Putting your house into trust is a personal decision which should not be made lightly.

There are many disadvantages of doing so and you must carefully weigh these up before deciding on a way forward. For example, once you put your house into trust, it is no longer yours and is held by the Trustees in accordance with the rules in the trust.

If your intention is to avoid paying for care, putting your house into trust may be seen as ‘deliberate deprivation’ and it may still be taken into account for care funding purposes. Please ensure you talk to one of our specialists if you are considering whether this step is right for you.
Trusts and Estates
What rights do beneficiaries have under a trust?
Beneficiaries generally have a right to enforce the terms of the Trust and to hold Trustees accountable for their actions.

As a result, Trustees should provide beneficiaries with basic information, such as a copy of the Trust document and Trust accounts.

Please note that beneficiary rights may vary depending on the type of Trust. If you are a potential beneficiary under a Discretionary Trust for example, you do not have any right to any part of the trust fund as this is at the discretion of the Trustees.
Trusts and Estates
Is a Trust part of the estate?
Trusts are usually considered to be distinct ring-fenced assets, although there are some circumstances where the value of the Trust is included/considered as part of your estate for tax purposes only.

For example, the beneficiary of a life interest trust has the right to benefit from the trust assets during their lifetime. If benefits continue up until that beneficiary’s death, the value of the trust at the date of their death may be added to their own estate value for the calculation of inheritance tax.

A bare Trust (i.e held directly for the benefit of a specific individual) may also be considered as part of your estate.
Trusts and Estates
What are the pros and cons of a Trust?
Pros – Trusts can be very useful for controlling (to some degree) how assets are managed and used after you have given them away. In some circumstances, Trusts may also protect vulnerable beneficiaries from exploitation (by having someone who is independent control the funds for them) and may allow you to leave inheritance for vulnerable individuals without impacting their benefit entitlement.

Some forms of Trust may also protect assets for (for example) your children in the case of their own divorce or where you would prefer the money to be given to them in stages rather than all in one go.

Cons – Trusts can sometimes be complex and difficult to understand. Depending on the Trust, this may also need to be registered with HMRC and there could be hefty tax payments when taking money out of the Trust.

Trust accounts ought to be produced every year and this could be particularly onerous or complicated for individuals who are not experienced in this area.

Having professional Trustees would certainly have its benefits here.
Lasting Power of Attorney
Who Can Make a Lasting Power of Attorney?
Anyone aged 18 or over, and who has mental capacity to give their instructions and understand the nature of the documents and the decisions their attorneys can make on their behalf..
Lasting Power of Attorney
Can I Appoint Multiple Attorneys?
Yes, you can have multiple attorneys. It is common to appoint between two and four attorneys, and you have the option to appoint primary and replacement attorneys.

When you appoint more than one attorney it is important to consider if you know your attorneys well and trust them to make decisions on your behalf if you are unable to. It is also important when appointing multiple attorneys to consider whether they will be able to work well together on your behalf.

When you appoint more than one attorney you will need to decide how they can make decisions, whether they can only make joint decisions, or if they are given the flexibility to act together and independently.
Lasting Power of Attorney
Can I Create an LPA for Both Finances and Healthcare?
Yes, you can do a Lasting Power of Attorney for both Health and Welfare and Property and Finance. We would advise that both are created, as they appoint attorneys to make different decisions, and one cannot be used to make decisions for the other. The Property and Finance Lasting Power of Attorney for example could not be used by your attorneys to make decisions on your health if you were in hospital, and the Health and Welfare Lasting Power of Attorney could not be used by your attorneys to sell your home to release funds for your care.
Lasting Power of Attorney
Do LPAs have an Expiry Date?
A Lasting Power of Attorney cannot be used after the death of the ‘donor’ the person who the document is for. However, in a donor’s lifetime there is no expiry date. The benefit of this is that even if the donor becomes mentally incapable of making their own decisions, having created a Lasting Power of Attorney whilst still having capacity, the document still continues to be valid.
Lasting Power of Attorney
Who can I appoint as my attorney for an LPA?
You can appoint anyone to be your attorney. The only requirement is that your attorney is over the age of 18. For example, you can appoint your spouse, your children, other family members and friends. You can also appoint Tollers to be your attorney if necessary. Your attorney should be someone who you trust to manage your affairs and who is willing and able to do this as there could be a lot of work involved for them.
Lasting Power of Attorney
When Does an LPA Come into Effect?
LPAs have to be registered with the Office of the Pubic Guardian before they can be used. Once registered, the Health & Welfare LPA can only be used when you do not have the capacity to make decisions for yourself. The Property & Finance LPA can be used as soon as it has been registered, even if you still have capacity. Your attorneys, on your instruction, can use the Property & Finance LPA, whilst you still have capacity to make the decisions but are unable to act on your decisions for whatever reason.
Lasting Power of Attorney
How Does Mental Capacity Affect LPA?
You have to have mental capacity in order to create an LPA. The LPA is then ready to be used in the event that you lose capacity and cannot deal with your own affairs.
Lasting Power of Attorney
Can I Cancel or Change My LPA?
It is not possible to change any details on a Lasting Power of Attorney once it has been registered. However, if the personal details of yourself or any attorney appointed under a Lasting Power of Attorney change because of a change of address or a change of name, the Office of Public Guardian must be notified. The original Lasting Power of Attorney must not be amended as it may make it invalid.

Sometimes however it becomes clear or circumstances change such that the person you’ve appointed as your attorney is no longer the right choice or is no longer willing or able to act in your interests. Fortunately, you can revoke the appointment of an attorney or cancel your Lasting Power of Attorney at any time as long as you have the mental capacity to do so. The original Lasting Power of Attorney together with the relevant Deed of revocation will need to be sent to the Office of Public Guardian. If the whole of the Lasting Power of Attorney is revoked you will need to consider putting in place a new one to ensure you continue to have an attorney appointed to help you deal with your matters going forward.
Lasting Power of Attorney
What Safeguards Are in Place to Prevent LPA Abuse?
If there are concerns of abuse of the LPA, these should be reported to the Office of the Public Guardian who has powers to investigate the abuse and make decisions as to whether the LPA will continue.

To avoid abuse of the LPAs, it would be recommended for the person creating them as well as the attorneys appointed to obtain advise from a qualified legal advisor including how the attorneys make decisions, what decisions they can make and set up some limitations/restrictions.
Lasting Power of Attorney
What happens if I don’t have an LPA?
If you don’t have a valid Lasting Power of Attorney or Enduring Power of Attorney, and you lose mental capacity, someone wishing to act on your behalf may need to apply to the Court of Protection to be appointed as your deputy. This can be a lengthy and expensive process, where the Court of Protection will decide whether any person applying to be your deputy will be suitable for the role.
Lasting Power of Attorney
Is It Possible to Challenge an LPA in Court?
It is possible for an LPA to be challenged if there are reasonable and genuine grounds for doing so. The LPA may be challenged by the person who created the LPA, the attorneys or notified person or a relative or Local Authority.
Lasting Power of Attorney
How Do I Choose the Right Attorney?
Your attorney needs to be 18 or over and can be a relative, friend or a professional, for example, a solicitor or accountant. You need to consider that they are trustworthy, will always act in your best interest and have the time that is necessary to deal with your affairs.
What are the stages of probate?
Firstly, values of the assets need to be gathered to determine if there is any Inheritance Tax to be paid. Once this has been dealt with the application for the Grant of Probate can be completed and submitted to the Probate Registry. Once Probate has been issued by the Probate Registry the estate can be administered. This includes gathering in the assets (such as closing bank accounts) and distributing the estate to the beneficiaries in accordance with the Will or the Rules of Intestacy.
Do I need probate if my husband/wife/civil partner dies?
You may need probate if your husband/wife/civil partner dies. It will depend on what assets they had and who they are passing to under the Will or the Rules of Intestacy.
Do I need probate for joint assets?
Usually jointly owned assets automatically pass to the surviving owner without the need for probate. There are however certain assets which may still require probate. For example, probate may be required for a house owned jointly as tenants in.
Do I need probate if there is a will?
Probate is the process of proving that a Will is valid (f there is one) and confirming who has authority to administer the estate of the person who has died. If the estate is anything other than very small or simple, you will need to apply for a grant of probate. Probate is definitely required If you need to sell property on behalf of the estate or, if any banks or organisations where the deceased held sole accounts with advised that a grant was required. If you are unsure whether or not a Grant of Probate is needed, a solicitor will be able to advise you whether or not it is needed.
When is probate required?
If there is property in a deceased’s estate to be sold a grant of probate will definitely be required. Even if there is no property to be sold, some banks or organisations may require the grant of probate to release the funds from a deceased’s accounts. The thresholds to which banks or organisations will release funds without a grant of probate do vary and can change.
Declaration of Trust
What are the financial responsibilities outlined in a Declaration of Trust for property?
Declarations of Trust are designed to suit individual circumstances; however, all should consider the following:
  • The amount each party has contributed to the deposit on the property;
  • The amount each party will contribute to the mortgage repayments and other outgoings;
  • The percentage of the property each party will ultimately own;
  • How much each party will get from the sale of the property ;
  • How the property will be valued before it is put up for sale;

Various clauses can be added if necessary to account for different eventualities.

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