What does that mean?… Will and Probate related terms

There are few things in life that are likely to be more traumatic than dealing with the death of a loved one. It is, however, an unfortunate and painful reality that we will probably all have to face at some point.

Thankfully there are safeguards we can put in place to ensure that when faced with these situations, we can allow ourselves to deal with the emotional turmoil such events bring, knowing that the practicalities of dealing with finance, insurance companies and assets have all been taken care of in advance.

There are many considerations when it comes to Wills and Probate, and the process of the tying up of a loved ones’ affairs. You may be aware of some of the more well-known elements; such as the Will itself and what it means to be a Beneficiary. However, for many, knowing what it means to be ‘Intestate’ and understanding the legal requirements of the ‘Trust Minutes’ is an unknown entity. With this in mind, I’ve compiled a list of terms and their definitions, to remove the potential cloak of confusion surrounding an area we all need to have a clearer understanding of.

Will

The legal document allowing you to leave your ‘estate’ the way you would like to leave it. A Will must be in writing, it must be signed and dated in the presence of two witnesses, who must then sign to confirm they are witnessing it.

Estate

The total value of your assets when you die, after deducting any debts and funeral expenses.

Intestate

If you die ‘intestate’ you die without leaving a Will. Your estate will then be distributed to your family in accordance with the laws of intestacy. Only if you have no family at all will your estate pass to the government.

Executor

The person or people appointed to look after your estate. Responsibilities include:

  • Arranging the funeral
  • Notifying any relevant companies/organisations regarding death
  • Calculating the value of an estate to establish whether Inheritance Tax is due to be paid.
  • Establishing whether a ‘Grant of Probate’ is needed and if so applying to the court for this document.
  • Calling in assets and paying any debts
  • Distributing the estate in accordance with a Will or the laws of intestacy.
  • Running any Trusts that are created (if separate Trustees are not appointed)

Power of Attorney

The document you will need to sign, in front of a witness, to give a solicitor or other professional authority to act as executors on your behalf.

Trustee

A person appointed to run any Trusts that are created following a death. Often this is the same person/people who are appointed as executors, but sometimes separate Trustees are appointed.

Trust fund

The value of assets placed in Trust for children or others following a death.

Trust minutes

These are required by law. All Trustees are obliged to meet at least annually and to minute that meeting to ensure that the Trust is being run correctly.

Guardian(s)

The person or people appointed to look after any child under the age of 18 when parents are not able to look after the child themselves.

Beneficiary

Someone who benefits from a Will i.e. inherits something in a Will.

Legacy

The ‘gift’ you are left in a Will.

Probate

This is often the general term used to describe the process of administering an estate after someone has died.

Grant of Probate/Representation

This is the document that is often needed to call in assets (obtain funds from banks etc that are holding money belonging to the deceased’s estate), or to sell property. An application to court has to be made and a fee is payable. Individuals applying will have to attend court or a solicitor’s office personally to swear oath, whereas professional executors do not have to do this.

 Letters of Administration

The Scottish equivalent of a Grant of Probate.

Assets

Any item of value owned by the deceased.

Liabilities

Any debts the deceased had at the time of their death, plus costs which occur whilst the estate is being finalised e.g. funeral costs/professional fees and disbursements.

Residuary estate

This is the net estate available to be distributed to beneficiaries after all liabilities have been paid and specific gifts have been made.

 Deed of Variation

A legal document which allows a beneficiary to vary the terms of someone’s Will up to two years after they have died. This is useful where a beneficiary does not want to inherit something as it may have an impact on Inheritance Tax that would be due on their death. They can vary a Will so that their inheritance will pass straight to their child/children.

Right to occupy/Life interest

If a Will specifies that you have been given a ‘right to occupy’ or a ‘Life Interest’ in a property it means that you will be allowed to live in the property for a defined period, but you will not actually own the share of the property that was owned by the deceased. This share will be held in Trust.

Inheritance Tax (IHT)

The tax that can be payable on death (and on some gifts made prior to this). There is an annual exemption each year (currently £325,000) and if the estate is valued above this level Inheritance Tax will be payable at 40% on the excess. In the case of a married couple the allowance which is unused by the first person to die can be transferred to the surviving spouse, meaning that, based on current rates, up to £650,000 can be treated as being exempt from Inheritance Tax.

Residence Nil Rate Band

A new Inheritance Tax ‘allowance’ that was introduced in April 2017. If you
have a property that you are ultimately leaving to children you can currently
leave an additional £100,000 without IHT being due. For a couple this can be
transferred to a spouse, meaning that the couples’ allowance is increased
from £650,000 to £850,000 in the 2017-18 tax year. By 6th April 2020 a
couple leaving a property to children or step-children will be able to leave up
to £1 million without IHT being due on their combined estates.

Distribution (final or interim)

This the act of making a payment to a beneficiary, and also the term used
to describe the payment. A distribution can be ‘interim’ if funds are paid to a
beneficiary prior to the estate being wound up, or it can be ‘final’ if all
calculations have been completed and the estate is being finalised.

 

Many of us spend years debating the drafting of our Wills and never actually get around to writing them. This can be because people are uncomfortable having discussions with their loved ones on the seemingly cold and callous topic of how the estate will be split, who will be entitled to what, how and when. At A.R.K. we understand how difficult this process can be, and are here to help you every step of the way with expert, jargon-free advice; ensuring you and your family are protected from the worst.

If you feel the time is right for you to put pen to paper, and ensure that your loved ones aren’t left with anything other than peace of mind for the future, call us today on 01438 746977 or email info@arkpowers.com.

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