legal & fi nancial


the Will is carrying out your intentions or a Codicil can be drafted if this is more appropriate. This, of course, would be the best solution but sometimes the error is only discovered once the person who has made the Will has died. What can then be done depends on the error that has been made in the Will. For example, if the deceased decided to alter his Will by


crossing something out and changing it but the amendment had not been signed and executed correctly then, where the original writing is apparent, the original words would stand rather than hand written amendments. Sometimes there is ambiguity in the Will. It may need the Courts to decide what the testator meant and the court will need to determine the meaning of the words written and will not speculate as to what the testator’s real intention may have been. The law also allows rectifi cation of a Will to carry out the testator’s intentions if the Will, as it stands, fails to do so because of a clerical error or the person drafting the Will fails to understand the testator’s instructions. In short therefore, the fact that the Will may contain an error or a discrepancy of some sort does not necessarily mean that the whole Will becomes invalid.


Do I need to obtain a Grant of Probate to sell a house?


Whether or not a house can be sold without a Grant of Probate is dependent upon the ownership of the house before death. For example, if the house was owned by husband and wife as joint tenants then the doctrine of survivorship would apply. This would mean that the interest held by the deceased’s spouse would automatically pass to the surviving spouse and as such the surviving spouse becomes the sole owner of the property and can deal with it as they see fi t.


If on the other hand the spouses held


the property as “tenants in common”, that is to say they each own a certain percentage of the property individually, the doctrine of survivorship does not apply. The part of the property owned by the deceased will fall into their estate and Probate will need to be granted before the property can be sold or transferred to the surviving spouse.


Planning For Later Life Magazine


Can a Personal Representative also be a benefi ciary of the estate? Yes a Personal Representative can benefi t from the estate of the deceased and it is quite common that they do so. For example, a husband and wife may name each other as benefi ciaries in their respective Wills and also name each other as Executors.


What happens if there is no Will? If a person dies without leaving a Will they are described as dying “intestate” and their estate is then distributed according to the Rules of Intestacy, which are governed by statute. If the deceased has a surviving spouse or civil partner and children they will be entitled to all the deceased’s personal belongings and jointly held property. In addition the spouse or civil partner will be entitled to a statutory


legacy of £250,000 free of tax. This increases to £450,000 if there are no surviving children or issue. The rest of the estate is then divided into two equal halves, with one half being held on trust for the spouse or civil partner for life. The other half is then left to the issue of the deceased (“issue” being direct descendants of the deceased i.e., children and grandchildren.) If the deceased had no surviving spouse or civil partner the estate is divided between the deceased’s relatives in the highest category from the following list: Children or their issue; Parents; Brothers and sisters of the whole blood or their issue; Brothers and sisters of the half blood or their issue; Grandparents; Uncles and aunts of the whole blood or their issue; Uncles and aunts of the half blood or their issue; The crown. • Reshma Field is a Partner at Buss Murton. Email rfi eld@bussmurton.co.uk or info@ bussmurton.co.uk or call 01892 510222.


PROBATE JARGON BUSTER


Administrator – name given to a Personal Representative if not appointed by a valid Will.


Assets – anything you own of value including property and land, investments, cash, and items such as paintings, antiques or jewellery.


Benefi ciary – a person or institution, such as a charity, who is set to receive something under a Will, Trust or Intestacy.


Chattels – personal belongings that usually include items of furniture, art, antiques, jewellery, watches and so forth.


Crown – another name for the Government or State – for instance if someone dies without a Will and there is no family, the Estate goes to the Crown.


Codicil – a legal document that is often used to make minor changes to a Will but in order for it be valid, the same formalities with regard to signing are applied.


Demise – grant of a lease. Devise – gift of house or land.


Estate – this usually includes any assets and chattels owned by you (including your share of joint assets) or the value of anything held in trust that you are a benefi ciary of.


Executor – the person(s) named in a Will to administer your estate after your death.


Grant of Probate – the legal document issued to the executors by the Probate Registry that authorises them to deal with the assets in the deceased’s name. Without it, money and property cannot be collected in and then distributed according to the Will. See Letters of Administration when there is no Will.


IHT – Inheritance Tax. Intestate – this is when someone dies without


a valid Will in place and their estate is distributed according to Rules of Intestacy.


Issue – children, grandchildren, adopted children.


Joint tenancy – a common arrangement for property owned by two or more people. When one owner dies, their ownership passes to the surviving owner(s).


Legacy – a gift included in a Will that is either a fi xed sum of money or a specifi c item.


Legatee – term used to describe that type of benefi ciary.


Letters of Administration – gives the same authority as the Grant of Probate but is issued when there is no Will.


Personal Representative (PR) – general term for both Administrators and Executors.


Probate Registry – government offi ce that deals with Probate and Administration, with principle offi ce in London and regional district registries.


Real estate or realty – land and buildings owned by a person.


Residue – what is left of the Assets to share out after all the debts and legacies have been paid.


Tenants in Common – the alternative way to hold joint property as opposed to joint tenants. Tenants in common own specifi c shares of an asset that can be passed on under their Will (and do not pass to the surviving owner as it does with joint tenants).


Testator – the person who’s writing the Will – Testatrix if they’re female.


Witness – a Will must have two witnesses to the Testator signing it and they must not be benefi ciaries of the Will, or close family members of benefi ciaries.


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