asset-harbour-wills

What is an Attestation clause and why is it so important?

Tue, 17 Dec 2024 15:44:51 GMT

Attestation Clause of the Will

The attestation clause of a Will is the clause that explains the circumstances in which the Will has been signed and witnessed. Whilst including a form of attestation clause is heavily encouraged, it is not a legal requirement, but we would always recommend one being included as it provides evidence that these were the wishes of the Testator, and the Testator had intent of making the Will as well as knowledge and approval of its contents.

Ensuring the Will is signed and witnessed correctly is of upmost importance, as any minor error can have a major affect the validity of the Will.

There are two focal points from the Wills Act (1837), that I want to touch on as they're relevant to the correct attestation of a Will.

Section 9 Wills Act (1837)

Section 9 (1) of the Wills Act [1837] sets out how the Will must be signed and witnessed to ensure validity. This section states that:

“No will shall be valid unless—

(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)it appears that the testator intended by his signature to give effect to the will; and

(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)each witness either—

(i)attests and signs the will; or

(ii)acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.”

Section 15 Wills Act (1837)

The second Section of the Wills Act that is relevant to the attestation of a Will is section 15 of the Wills Act (1837), this section states:

"Gifts to an attesting witness to be void.

If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will."

In layman’s terms, any beneficiaries that sign as witnesses on the Will void their gift. This can be rectified if the Will is re-signed and witnessed but it is important to ensure you know who can and cannot be witnesses on the Will to avoid any issues.

Duties of an Executor

Thu, 22 Aug 2024 12:05:02 GMT

What is an Executor ?

When writing your Will, you'll find there are several roles you will need to consider - Executors being one of these. In this article, we outline the roles and responsibilities of an Executor and what you, as the testator, would need to consider when appointing them in your Will.

An Executor is the name individual(s) in the Will who carries out your wishes and administers the estate upon their death. You're able to appoint up to four working Executors at one time, this can include professional Executors should you prefer.

What are some of the responsibilities of an Executor?

Collating all assets, ascertaining the value and keeping them insured if applicable
Ensuring the estate is distributed correctly
Maximising the estate for the beneficiaries by applying for the relevant allowances and reliefs available
Identifying and settling all assets and debts before distributing any funds to the beneficiaries
Paying Inheritance Tax, if applicable, which is due on the estate within the stated timeframes
Applying for the Grant of Probate, if its required
Finalising the Income Tax position of the deceased's estate from point of death till post-death distribution

It is also worth noting that should any issues occur, the Executor(s) can become personally and financially liable for losses, therefore when appointing an Executor, you want to ensure you're choosing capable people.

The Executors you've appointed have the option to instruct professional Executors should they wish, which is a helpful and necessary alternative in some cases. Professional Executors will charge for their service, but it does remove the liability and stress of having to manage administering the estate, and the onus of this responsibility is passed to the company you've instructed.

Why Guardianship Appointment Is So Important

Tue, 30 Apr 2024 11:34:10 GMT

Avoid the confusion over guardianship.

If you have minor children, a guardianship appointment is one of the most important clauses to be put within your Will. A guardianship appointment will state you would look after your minor children if you were to pass away.

If there is no guardianship appointment made, there is a strong possibility that the children would be placed in temporary foster care while local authorities decide who would be the best people to look after them.

When deciding who to nominate as guardians, it is important to consider the following:

Would they be able to look after your children
Do they have the space
Are their beliefs/values similar to yours
Their location and would the children need to move

A guardianship appointment can only be made by a person who has parental responsibility, this can be a confusing area, so this will be discussed during your initial consultation and advice around this area would be provided.

What To Know About Inheritance Tax

Tue, 30 Apr 2024 11:31:37 GMT

Understanding the value in your estate.

Inheritance tax is tax that must be paid on someone’s passing if their estate is over their given allowance(s).

If you’re married it is only taxed on the second persons passing, as any assets passed from spouse to spouse is exempt.

There are two allowances that can be given.

Nil Rate Band (NRB) £325,000
Residential Nil Rate Band (RNRB) £175,000

In theory most people will have an £500,000 allowance which is the combined NRB and RNRB; if you’re married this is transferable and combines to £1,000,000. Allowances are not a guarantee, and you must match certain criteria to use your Nil Rate Band and qualify for your Residential Nil Rate Band.

There are also reliefs available, and this is something we would delve into with you in our initial meeting. Inheritance Tax is an important part of Estate Planning and is usually the first subject we broach with a client. This gives us a better understanding of what asset values you hold within your estate; this ensures we are advising correctly.

Intestacy – Dying Without a Valid Will

Tue, 30 Apr 2024 11:27:04 GMT

What is intestacy?

Intestacy or dying intestate is when a person passes away without writing a Valid Will.

This then means that the deceased’s assets pass under the rules of intestacy. The Rules of intestacy can have big implications for anyone but especially unmarried couples, blended families, and those with few relatives.

It is always best practice to have a Will in place to ensure your assets are ringfenced for the intended beneficiaries, otherwise you could be leaving your loved ones in vulnerable positions.

The workflow below explains how inheriting under the rules works: