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Will FAQ

Overview

  • Why is it important to make a Will?
  • Do you need to use a solicitor or professional Will writer?
  • Can married couples make a joint Will?
  • What should be included in a Will?
  • What do the terms “Executor” and “Trustee” mean?
  • Who should you choose as Executors?
  • Can my executor get professional help if they need it?
  • What is a Trust, and do I need one in my Will?
  • What are the requirements for a valid Will?
  • What should you do if you have a change of circumstances?
  • How can you change your Will?
  • What is a Codicil?
  • What is an Expression (or Memorandum) of Wishes?
  • Destroying a Will
  • Challenging a Will

Why is it important to make a Will?

It is important to make a Will whether or not you consider you have many possessions or much money for the following reasons:-

  • If you die without a Will (intestate), the government will decide how your money, property and possessions will be allocated, which may not be the way that you would wish them to be distributed. Our flowchart, available on request, outlines the rules of intestacy further.

  • Unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a Will, so the death of one partner may create serious financial problems for the remaining partner.

  • If you have children, you will need to make a Will so that arrangements for the children can be made if either one or both parents die.

  • It may be possible to reduce the amount of tax payable on the inheritance if advice is taken in advance and a Will is made.

  • If your circumstances have changed, it is important that you make a Will to ensure that your money and possessions are distributed according to your wishes. For example, if you have separated and your ex-partner now lives with someone else, you may want to change your Will. If you are married or enter into a registered civil partnership, this will make any previous Will you have made invalid.

Do you need to use a solicitor or professional Will writer?

If you want to make a Will yourself, you can do so. However, you should only consider doing this if the Will is going to be straightforward and you fully understand what you are doing. It is generally advisable to use a professional Will writer to make sure it will have the effect you want. This is because it is easy to make mistakes and, if there are errors in the Will, this can cause serious problems after your death. Sorting out misunderstandings and disputes may result in considerable legal fees which are considerably more than the cost of writing a Will with a professional.

Some common mistakes in making a Will are:-

  • Not being aware of the formal requirements needed to make a Will legally valid.

  • Failing to take account of all the money and property in the estate.

  • Failing to take account of the possibility that a beneficiary may die before the person making the Will.

  • Changing the Will. If these alterations are not signed and witnessed, they are invalid.

  • Being unaware of the effect of marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a Will.

  • Being unaware of the rules which exist to enable dependants to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the Will could be overturned.

Can married couples make a joint Will?

Each individual must have their own Will. Married couples will usually make almost identical Wills, known as Mirror Wills, which will have similar executors and beneficiaries. Some couples may choose to write Mutual Wills but after the death of the first person, the survivor’s Will cannot be revoked.

Where married couples, long term partners or those in a civil partnership share similar views as to the distribution of the estate. i.e. to pass one’s reside to the surviving spouse/partner and then subsequently to children, it is usually advisable to ensure that both parties arrange Wills.

What should be included in a Will?

You should consider such things as:

  • How much money and what property and possessions you have, for example, property, savings, occupational and personal pensions, insurance policies, bank and building society accounts, shares.

  • Who you want to benefit from your Will. You should make a list of all the people to whom you wish to leave money or possessions. These people are known as beneficiaries. You should also consider whether you wish to leave any money to charity.

  • Who should look after any children under 18.

  • Who is going to sort out the estate and carry out your wishes as set out in the Will.

What do the terms “Executor” and “Trustee” mean?

Executors are the people who will be responsible for carrying out your wishes and for sorting out the estate. They will have to collect together all the assets of the estate, deal with all the paperwork and pay all the debts, taxes, funeral, and administration costs out of money in the estate. They will need to pay out the gifts and transfer any property to beneficiaries.

Trustees will hold the assets on behalf of minor children or other dependent beneficiaries until such time as the trust fund is wound up (eg when the child turns 25).

Who should you choose as Executors?

It is important to choose executors with considerable care since their job involves a great deal of work and responsibility. You should always approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility. If someone is appointed who is not willing to be an executor, they have a right to refuse. If an executor dies, any other surviving executor(s) can deal with the estate. If there are no surviving executors, legal advice should be sought.

Can my executor get professional help if they need it?

If you choose a family member or friend to be an executor, they may appoint professionals such as accountants, solicitors or trust corporations to carry out some of the administrational duties. Therefore, it is important that the Will allows their fees to be paid for by your estate.

What is a Trust, and do I need one in my Will?

Trusts are instruments established by Will for the purpose of protecting capital after death of the testator and beyond, mainly used to provide for vulnerable/minor beneficiaries, to segregate assets from the free estate of a surviving partner/spouse and/or also where the distribution of capital may need to be varied in the future. Any ‘Will trust’, although established via the Will, is not set up as a deed until the death of the testator when the full terms and those acting can be ascertained. Trust’s come in several variety’s each with differing tax treatment depending on their purpose and to whom they are to benefit.

What are the requirements for a valid Will?

In order for a Will to be valid, it must be:

  • Made by a person who is 18 years old or over; and

  • Made voluntarily and without pressure from any other person; and

  • Made by a person who is of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identity of the people who may inherit; and

  • In writing; and

  • Signed by the person making the Will in the presence of two witnesses; and

  • Signed by the two witnesses, in the presence of the person making the Will, after it has been Signed. A witness or the married partner of a witness cannot benefit from a Will. If a witness is a
    beneficiary (or the married partner or civil partner of a beneficiary), the Will is still valid but the beneficiary will not be able to inherit under the Will.

Although it will be legally valid even if it is not dated, it is advisable to ensure that the Will also includes the date on which it is signed. As soon as the Will is signed and witnessed, it is complete.

What should you do if you have a change of circumstances?

When a Will has been made, it is important to keep it up to date to take account of changes in circumstances. It is advisable for you to reconsider the contents of a Will regularly to make sure that it still reflects your wishes. The most common changes of circumstances which affect a Will are:-

  • Getting married, remarried or registering a civil partnership

  • Getting divorced, dissolving a civil partnership or separating

  • The birth or adoption of children, if you wish to add these as beneficiaries in a Will.

How can you change your Will?

You may want to change your Will because there has been a change of circumstances. You must not do this by amending the original Will after it has been signed and witnessed. Any obvious alterations on the face of the Will are assumed to have been made at a later date and so do not form part of the original legally valid Will.

The only way you can change a Will is by making:-

  • A codicil to the Will; or

  • A new Will.

What is a Codicil?

A codicil is a supplement to a Will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a Will, or to add beneficiaries. A codicil must be signed by the person who made the Will and be witnessed in the same way. However, the witnesses do not have to be the same as for the original Will. There is no limit on how many codicils can be added to a Will, but they are only suitable for very straightforward changes. If a complicated change is involved, it is usually advisable to make a new Will.

What is an Expression (or Memorandum) of Wishes?

After you have written your Will, you may want to make your intentions better known to your trustees in more detail than can be covered in your Will. You may want to give directions as to how any resultant trust fund should be administered, how you would like your funeral to be arranged, or, if there are people you have not benefited in your Will, the reasons they have been excluded. You may also use an expression of wishes letter to distribute personal possessions which you do not want to include in the Will.

Destroying a Will

If you want to destroy a Will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked. There is a risk that if a copy subsequently reappears (or bits of the Will are reassembled), it might be thought that the destruction was accidental. You must destroy the Will yourself or it must be destroyed in your presence. A simple instruction alone to an executor to destroy a Will has no effect. If the Will is destroyed accidentally, it is not revoked and can still be declared valid. Although a Will can be revoked by destruction, it is always advisable that a new Will should contain a clause revoking all previous Wills and codicils.

Challenging a Will

A person may want to challenge a Will because:-

  • They believe that the Will is invalid; or

  • They believe that they have not been adequately provided for in the Will.

There are strict time limits for challenging a Will and if you want to challenge a Will, you should seek legal advice as soon as possible.