Will - Property you can leave by will

Your Will - Trustees

Property you can leave in your will

Introduction

This article is one of a set about wills. While some of the information pages explain various pieces of legislation which are relevant to making a will, others explain a particular aspect of will writing that you might like to consider.

This article explains the type of assets you can and can’t leave in your will.

Property you an leave in your will

If you live in the United Kingdom, you can dispose by will of all your moveable possessions and all real property which is situated in the UK.

If you own property outside the UK, the question as to whether your UK will is an appropriate document to dispose of the property is a matter for the law of the country in which the property is located.  Most countries in the EU and many other countries World wide will accept an English will.  (However, your executors will have to take out a grant of probate in the country in which the real estate is situated, even within the EU)

If you own property in the UK as a joint tenant, then your half share passes automatically on your death to your co-owner.  You have no choice in the matter.  However, note that the value of your share will be included in the valuation of your estate for the purposes of inheritance tax, unless one of the exemptions applies.

Intellectual property.  This expression describes most intangible assets such as domain names, patents, copyrights, rights to sue for damages (except to sue for defamation) and right under many contracts.

Self administered pension plans (SIPPS) and other pension schemes.  Great care is needed here because your pensions could well be your most valuable asset.  The care is needed by you in planning and later by your executors to make sure the trustees of any pension or pension policy are aware of any claim your executors might make.  What they can claim depends entirely on the rules of the particular scheme.

Property you cannot leave in your will

Insurance policies in trust

When you take out an insurance policy you may stipulate that the policy is taken out on trust for some other person or people.  You can also make a written declaration at any time in respect of an existing policy that the policy shall be held on trust for others.  When a policy is “on trust” for some other person, it maens that other person or group of people have the benefit of it.  The advantage of a policy or other financial instrument being in trust is that on your death (or the maturity of the policy) the value of the policy does not form part of your estate and consequently it is:

·         payable immediately to the trustees without waiting for a grant of probate;

·         not subject to inheritance tax (because it is not part of your estate)

Other property you do not own

There are several other situations where a testator may believe he owns property which is not his to give. The most important of these are:

·         a power of appointment - upon which we do not elaborate her;

·         possessions subject to a hire purchase agreement;

·         property left it to you only for your lifetime;

·         some rights in connection with land;

·         some companies state in their articles of association (the regulations which govern the running of the company) that you cannot transfer the shares in the company (sometimes except to specified members of your family), without first offering them to the existing shareholders in the company. If you own shares in a small or family company you should check the position first with the company secretary or at Companies House.

·         your body, but the Human Tissues Act of 1961 and the Anatomy Act of 1984 in effect provide that if you express a wish at any time in writing or during your last illness orally in the presence of two witnesses to the effect that your body, or any part of it, shall be used for therapeutic purposes or for the purpose of medical education, research or anatomical examination, then your executors or administrators may authorise such use. Similarly any such person may authorise any part of your body for such use if, after making all reasonable practical enquiries, he has no reason to believe that you or your surviving spouse or relatives would object.

If by chance you find some error of law or fact in any Net Lawman information page, do please tell us. We should also welcome your suggestions for new subjects for information pages. These notes:

• do not provide a complete or authoritative statement of the law.
• do not constitute legal advice by Net Lawman.
• do not create a contractual relationship.
• do not form part of any other advice, whether paid or free.

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5. CGT - Working out the tax due
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17. IHT - Alter Inheritance tax
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21. IHT - Deceaseds liabilities
22. IHT - Discretionary trusts
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24. IHT - Foreign aspects
25. IHT - Gifts
26. IHT - Introduction – Is Inheritance Tax due?
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28. IHT - Paying IHT
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30. IHT - Pensions
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40. Notes for attorneys on LPAs for property and affairs
41. Ordinary Power of Attorney: a temporary alternative to an LPA
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44. Your will - Discretionary trusts
45. Your will - Giving to charities
46. Your will - Important drafting points
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48. Your will - Inheritance tax strategies
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51. Your will - Marriage and divorce
52. Your will - Medical use of your body
53. Your will - Mutual wills and mirror wills
54. Your will - Post mortem tax planning
55. Your will - Revoking wills
56. Your will - Trustees
57. Your will - Why make a will