Fielder Club – Frequently asked Questions and Answers

Andrew Jack of AMD Solicitors gave a talk to around 40 members of a Westbury-on-Trym community organisation on 2 April 2012 about the various options available to them on planning for their later years.

Andrew Jack said: "It was fantastic to be invited along by such a forward thinking local community group. It is not easy to contemplate your later years, however, it is important to make provisions while you can."

The organiser of the event said: "The general concensus was that it was a thoroughly worthwhile venture from our point of view… It was valuable to have so many of our questions answered, and our eyes opened to some of the possible pitfalls we might encounter."

To aid those that were unable to attend the meeting and to raise awareness in the wider community Andrew answers some of the questions asked here:

1. Q. "My husband died over 20 years ago. Will I still be able to claim his nil rate band?"

A. Yes. The transferable nil rate band, introduced in October 2007, is available on the second death of a married couple. If the first spouse to die left their entire estate to their spouse then the second spouse should have the equivalent of two nil rate bands on their death. The only exception is if the first spouse died before 1975 when different rules applied and if so specialist advice is needed.

2. Q. "I have been told that it will be difficult for my executors to claim the nil rate band transfer. Is this the case?"

A. HM Revenue and Customs documents can seem intimidating at first, however, to claim the transferable nil rate band only requires the completion of one extra form and the provision of some documents, inlcuding a copy of the Will of the first spouse to die. However, if this document is not available there are still things that can be done but in these circumstances it is important to obtain specialist advice.

3. Q. "I have been told that beneficiaries cannot be executors of my Will. Is that true?"

A. A beneficiary must not witness a Will but apart from that as long as they are over 18 and mentally capable anyone can be an executor.

4. Q. "My children live abroad. Does that mean they cannot be Executors?"

A. As above provided they are over 18 and mentally capable they can be your executors, the only difficulty is practicality with timing and signatures. Electronic signatures are not acceptable for most banks and asset holders and therefore there can be delays while documents are sent around the world.

5. Q. "I have made several Wills and left them with different Solicitors over the years. Is this a problem?"

A. Provided it has been drafted properly your latest Will revokes all previous Wills and therefore is the one that would be submitted to probate on your death. However, Solicitors cannot destroy a Will for you and will hold it indefinitely. Indeed AMD is holding a Will from 1925! It is therefore wise to contact any former Solicitors to advise them your Will has been replaced and ask them to send you your old Will(s) for destruction.

6. Q. "My children have moved several times since I made my Will. Is this a problem?"

A. No. Addresses are in a Will for identification purposes only, however, it is useful if addresses are updated. Most solicitors will be happy to place a note with your Will which contains the latest addresses.

7. Q. "I made an Enduring Power of Attorney. Is it still valid?"

A. Since October 2007 you can no longer make an Enduring Power of Attorney. However, if you entered into one before that date it is still valid and capable of being used.

8. Q. "I have an Enduring Power of Attorney, should I replace it with one of the new lasting powers of attorney?"

A. The new style Lasting Powers of Attorney do have some advantages over the old Enduring Powers of Attorney. For example it is now possible to appoint a replacement attorney. You can also place guidance in them. It is also now possible to grant Power of Attorney to someone to make health and welfare decisions on your behalf.

9. Q. "I have appointed my bank as executors. Is this wise?"

A. Sadly, the days of having a local bank manager who knows you well and offers a personal service are long gone. If you appoint your bank to act as professional executors they are likely to deal with it from a central location. We have known instances when a bank executor has sealed up a property immediately on death, effectively preventing the deceased’s nearest and dearest from access.

10. Q. “Do I have to have a Solicitor as my executor?”

A. If your estate is particularly complicated then it is wise to appoint a professional to be executor. Otherwise it is generally acceptable to appoint a lay (non professional) executor.

11. Q. “Is my Will private?”

A. During your lifetime your Will is a confidential document between you and your Solicitor. Once probate has been granted it is possible for anyone to apply for a copy of your Will.

12. Q. “I wish to donate my body to medical science. Do I need to mention this in my Will?”

A. It is possible to put funeral wishes in your Will, however, your Will is not always checked before the funeral is arranged. If you wish to donate your whole body or any part of it you should contact your local medical school before you die to put arrangements in place and speak to your family so they know your wishes.

A copy of the notes from the meeting are available on request. Please email to request a copy.

If you would like to arrange for one of our Solicitors to talk to your group about the law in a particular area please email with the name of your group, contact details and which area of the law you would like to discuss and one of our Solicitors will be in contact.

“AMD Solicitors are proud to have been part of the local North Bristol community for over 60 years."

This article is provided for general information purposes only and represents our understanding of the relevant law and practice as at the date of uploading. This article should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.

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