Legacies in Wills and Probate
Posted on 22nd May 2020 at 09:25
A legacy is a gift that you leave to someone or leave to a charity in your Will. You will encounter the term 'legacies' both when making a Will, and if you ever go through the Probate process, which is when you administer the Estate of a deceased person.
Legacies in Wills Explained
When you write a Will, you'll be asked whether you would like to leave any legacies, otherwise known as gifts.
There are different types of legacy, and it's useful to understand some of the most common, which include:
A Pecuniary Legacy, which is when you leave a fixed sum of money to a particular person. For example, you might leave £1,000 to your cousin Craig.
A Specific Legacy, which is when you want to leave a specific item to a specific person. For example, you might want to leave your engagement ring to your granddaughter Penny.
A Charitable Legacy, which is when you leave a gift to charity in your Will. This will be tax exempt.
A Residual Legacy, which is when the remaining assets in your Estate are left to a certain person or people. These beneficiaries will receive the 'residue' of the Estate, which is the net balance after tax, debts and other legacies have been paid. If you're leaving the residue to more than one person, you will need to say what proportion each person should receive.
When you make a Will, you need to think about the gifts you would like to include. Are there any sentimental items that you would like to ensure a particular person receives? Would you like to set aside a specific amount of money for a family member, friend or charity? Who do you want to receive the rest of your money and assets? And will the residual beneficiaries receive equal or unequal shares?
These are all things that you must decide when making a Will. If there is anything you're not sure about, our Wills advisors can explain legacies in Wills in further detail.
Legacies in Probate Explained
When someone writes a Will, he/she will also be given the opportunity to name Executors. These are the people responsible for administering their Estate on their death.
If you are the Executor of a Will, you will be tasked with fulfilling the legacies specified in the Will. This is one of the many duties of an Executor.
Typically the Executor will obtain a Grant of Probate and pay the debts that are due, after which he/she is free to distribute the Estate to the beneficiaries according to the terms of the Will.
However, problems can arise that prevent the Executor from doing this. For example, the gift may fail. This means that the item referred to was no longer owned by the deceased on their death, and so wasn't theirs to give away. Take the engagement ring that was supposed to be left to the granddaughter named Penny. If this had previously been lost, sold, stolen or previously given away, the item will no longer be there to give.
Alternatively the deceased may have made more legacies than he/she could actually afford. Sometimes this happens when a person writes a Will and makes a number of Pecuniary Legacies based on their current financial situation, yet by the time of their death, their finances are significantly depleted. If so, those who are due to receive a Pecuniary Legacy must have their gift reduced in equal proportions. This is called Abatement.
Or it may be that the Estate is insolvent, whereby there isn't enough money to pay tax, debts, administration expenses and all the legacies. Where there is an insolvent Estate, the debts must be paid back in a particular order, with the residual beneficiaries being at the bottom of the list.
Therefore distributing the legacies left in the Will may not be as straightforward as it seems. That is why most Executors choose to instruct a Probate Specialist to carry out the process on their behalf. Probate and Estate administration can be full of legal complexities, and if you are an Executor and you get it wrong, you could be found personally liable.
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