2020-06-25
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Making a Will - everything you need to know

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Posted by Susan Floyd on 06 May 2020

Susan Floyd - Tax Planning and Will Drafting Lawyer
Susan Floyd Partner

Making a Will is the only way you can ensure your assets are protected. A valid will means ensuring your property and possessions go to the people you love. This guide aims to answer all your questions about making a Will.

I don't have a Will, do I need one?

If you die and don't have a Will, you will be classed as 'intestate'. This means without a Will, your estate (your money, property, possessions and assets) will be distributed according to the Rules of Intestacy. 

These are rigid rules, and it is these rules that determine who benefits from your estate - this may not be in line with your wishes.

Making a Will allows you to decide who will deal with the distribution of your estate. You can choose your beneficiaries and what each person will inherit from you. Your Will may also contain instructions such as guardianship for your children and your funeral wishes. You can also outline what happens to your digital assets or trusts to ensure your loved ones are financially protected, and the inheritance tax payable on your estate is kept to a minimum.

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I made my Will many years ago, do I need another?

We recommend that you revisit your Will at least every five years as it's essential to check that it reflects your current circumstances. Just because your Will is old, it should not affect its validity. However, if your assets have changed or you wish to make an amendment, your Will needs to be updated accordingly.

Do I need to amend my Will, if so, what do I do?

A minor amendment to a Will may be made using an addition or supplement that explains, modifies, or revokes a will or part of one: this is called a codicil. A codicil is a legally binding document, and therefore, there are specific requirements that must be satisfied for it to be valid.

If you've already made several codicils or you wish to change the content of your Will substantially, it is likely to be more advantageous to revoke your current Will and create a new one.

What is a living will?

Living wills are often referred to as advance directives or decisions. In short, while you have the mental capacity, you can decide if there are circumstances when you may wish to refuse medical treatment in the future.

An advance decision is only used if you have lost the ability to provide refusal or consent yourself. These documents are often made by those who have firm wishes and do not want anyone else to decide for them; this may be because of a degenerative disease, are terminally ill or follow certain religious beliefs.

Reasons it is important to have a Will?

  1. You have knowledge and control on what happens with your money, possessions and property when you die - i.e. who gets what from your estate.
  2. You can choose your executor/s; these are the people who will handle and distribute your estate according to your wishes. You can select people you trust, and who you have confidence in to act responsibly.
  3. If you do not have a Will, you die intestate. The 'intestacy rules' will decide who will benefit from your estate, which may be contrary to your wishes. The intestacy rules also determine who will deal with your estate.
  4. You can name the legal guardian of your child or children (while they are under 18), so you know who will be able to make decisions for them if you and their other parent die. If they don't have a legal guardian, or there are complications, the decision could be made by the family courts.
  5. You may provide financial support for your children, dependents, loves ones and pets through your Will. You may decide to set up a trust, with express instructions as to how the money can be used. For example, depending upon your beneficiaries, the money may be set aside for maintenance, fees, education, a house deposit or to be received upon attaining a certain age.
  6. If you don't have a will, only your spouse or blood relatives will automatically inherit from you, and even in those circumstances, it is not as straightforward as you may expect. If you want to provide for your unmarried partner, step-children, foster children or other loved ones you will need a Will to do this.
  7. If you own your family home outright and your unmarried partner or step-children aren't in line to automatically inherit your estate, they could lose their home. With a Will, you could provide a right to live in the property or perhaps pass on your share of the house to them - if that is your wish.
  8. You may be able to help your family avoid disputes and arguments concerning your estate. Contesting a Will or making a claim against an estate when a Will hasn't been made or is out of date can be expensive and stressful, often breaking-down family relationships. This can often be avoided with a professionally drafted and up to date Will.
  9. Your existing Will may be invalid. If you've re-married since writing your Will or your Will has not been executed correctly, your Will may be invalid. If this is the case, your estate will pass under the intestacy rules
  10. Your Will may still be valid when you don't want it to be. If you are divorcing or have separated since writing your Will, your current Will is still valid. You need to ensure that your Will reflects your current situation. Otherwise, a previous partner may still benefit from your estate even if you don't want them to.
  11. You may need to change or even re-write your Will if something happens to one or more of your beneficiaries before you die. This may also be the case where an executor dies.
  12. You may be able to reduce or avoid the amount of inheritance tax payable on your estate. The amount depends on several factors, including the net value of your estate and who you decide to leave it to. Your estate left to your spouse or civil partner will automatically be exempt from inheritance tax. 
  13. You can leave instructions to your executor. For example, you may request specific funeral arrangements, ask a particular person to care for your pets and/or protect your digital assets.
  14. You can choose to support a charity or charities by leaving a gift or donation. This may also reduce the amount of inheritance tax payable on your estate.
  15. You may be able to help reduce the worry, work and stress for your loved ones going through a difficult time following your death. A professionally drafted Will often results in a cheaper and quicker administration of an estate.

Remember, it is important to regularly review your Will to ensure it remains relevant to your circumstances. We would suggest that you consider your Will every five years or after any significant event in your life, such as moving to a new house, marriage, divorce or having children. 

You cannot amend your Will once it has been signed and witnessed. However, you could change it, in some circumstances, with an appendix or "codicil".

Steps to consider when writing a Will

To make the process as straightforward as we can for you, we have created a checklist below, to help you make informed choices as to what you would like your Will to contain.

Step 1: Value your estate.

In short, your estate is what you own when you die, minus any debts that need to be settled and any inheritance tax which needs to be paid. Most Wills refer to this as the residue of your estate.

Your estate may include all or some of the following:

  • Property: your home, holiday home, investment property, a share in another property;
  • Savings: in bank accounts and building society accounts and premium bonds;
  • Personal belongings: jewellery, furniture, heirlooms, cars and motorbikes;
  • Insurance: endowment policies, life assurance
  • Pensions
  • Investments: stocks and shares, investment trusts
  • Digital assets: photographs, online accounts, cryptocurrencies.

Your debts may include:

  • Loans
  • Mortgage/s
  • Credit card balance/s
  • Bank overdraft
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Step 2: Think about tax

Inheritance tax will not be payable on any assets that your spouse inherits. Gifts and donations to charities are usually exempt from inheritance tax. The amount of inheritance tax payable on your estate will be dependent upon who you decide to leave your estate to. A legal specialist can guide you through the relevant factors.

Step 3: Decide how to divide your estate.

You will need to consider who you want to benefit from your estate and when they do. Any specific gifts you wish to leave to particular people (specific legacies) or charities need to be made clear. Likewise, you will need to think about what will happen to the residue of your estate.

Your home is likely to be your largest asset, and how you own it will affect whether it can be left in your Will. If you own your home outright, you will be able to decide who you leave it to. Different rules apply depending on whether your home is held in a joint tenancy or tenancy in common. Your legal adviser can guide you through how your ownership affects what you can leave in your Will.

Step 4: Other considerations and further instructions

You may wish to name a legal guardian who will be responsible for your children (while they are under 18 years of age) should you and their other parent die. You may also want to consider if any financial arrangements can be made to assist your children for their future; this can cover things such as school fees.

For many people, pets are a vital part of their family too, and you can name a specific person to take care of your pets and leave them some money to pay for their care.

Many people also like leave instructions concerning their funeral arrangements in their Will, although unlike the rest of the Will, these are not legally binding, but it gives people comfort to know their wishes are documented. For example, you may request burial or cremation. Leaving these instructions may help to spare your loved ones from making decisions at a difficult time.

You might also consider leaving a letter of wishes to accompany your Will, explaining the reasons for your decisions, especially if you deliberately wish to exclude someone from being a beneficiary. This is advisable if you think someone may try to contest your Will at a later date. 

Step 5: Choose your executors

Your executors are the people who carry out the wishes in your Will. You need to think carefully about who you wish to appoint because the role holds a lot of responsibility and sometimes involves a lot of work. 

You may have more than one executor, but if you're struggling to find someone suitable you could decide to appoint a professional executor, in many instances, this can be your lawyer.

Step 6: Write your Will

If you decide it's time to write your Will and have thought about what you would like to happen to your estate after you die, it would be sensible to collate the following information to help your solicitor draft your wishes:

  • Your personal details and details of your assets (e.g. account details and property addresses)
  • Your proposed executors;
  • Your beneficiary's details: full names, address/es and dates of birth
  • If applicable, details of your children and their legal Guardians, carers of pets and/or funeral arrangements.

Do you need a will?

Am I too young to write a Will?

You may be wondering "Do I even need a Will?" or "I'm too young to write a Will". Although most people writing Wills in the UK are older than 50, you could write a Will from the age of 18, and it is a good idea to do so, as life can be unpredictable.  

If you answer 'yes' to any of the following questions, it could be the right time for you to consider writing a Will.

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Do you have children?

If you have children who are under 18, you could use your Will to appoint a legal guardian. If both you and the child's other parent both die, the guardian could take over responsibility for your children. Guardianship can also be used to protect the position of parents who don't have a legal status such as in surrogacy cases or same-sex parents.

The family court can also appoint guardians, and anyone can apply to become a guardian. Having a Will in place, which appoints guardians, helps you to retain some control over the care of your children if you die.

Do you live with a partner who's not your husband, wife or civil partner?

In the UK common law marriage does not exist, even if you have lived with your partner for many years. If you die without leaving a Will, the intestacy rules in the law would mean that your cohabitee would not receive anything from your estate.

Do you own a property?

Another consideration is how you own your property. If you and your partner own your home as 'joint tenants' and you die, your partner would automatically own your home in their sole name. However, if you own the property jointly as 'tenants in common' your share of the property would form part of your estate and would pass to your beneficiaries following your Will or the intestacy rules which may not be in accordance with your wishes. 

Exclusive rights can also be included in Wills to allow for cohabitees to be able to live in a property for specified periods of time. This could provide them with security to be able to continue to live in the property while also ensuring the asset passes to your chosen beneficiaries. 

Therefore, regardless of your age, it is essential to check the ownership of your property and consider preparing a Will to ensure that your partner and your family could continue to live in your home.

Do you have any funeral wishes?

Discussing funerals with loved ones can be an upsetting conversation and something you might not want to talk about. In a Will, you can provide instructions concerning your funeral arrangements. For example, you might prefer to be cremated or buried, or wish to ensure that your religious practices are followed.

Some people also choose to write a letter of wishes, to let their executors know their preferences or background reasons concerning provisions in their Will. For example, you could ask that people don't dress in black at your funeral.

It is important to note that funeral wishes are not binding and therefore do not have to be followed by your executors. It can, however, help avoid family disagreements or assist loved ones and reduce the stress involved in making these types of decisions.

Do you have any pets?

For many of us, pets are part and parcel of our family unit, in some instances, particularly before children come along, and therefore we want to know they will be looked after if they survive us. You can nominate someone you trust to take care of your pet in your Will. You could choose to leave money to the designated person, so they would not be left out of pocket for the likes of food, grooming and veterinary expenses. This could be done by a trust or by a simple cash gift. It's advisable to check that the person is happy, willing and able to take on the responsibility first.

Do you want to make any specific provisions for a friend or relative?

You may have been passed down a family heirloom such as a wedding ring that you want your niece to inherit, or a collection of signed football shirts that you wish to your friend to receive. If you have any items that you want to go to specific people, your Will can ensure this happens.

Instead of leaving a particular item, you may want to leave a set sum of money from your estate; for example, £5,000 to your sister. A Will also allows you to leave cash gifts like this.

Do you want a specific person to have access to your digital assets?

The younger generation has numerous digital assets; these could include photos, email accounts, social media accounts, cryptocurrencies, gaming accounts, music or film libraries and much more. They're not physical possessions, but they may still hold a lot of sentimental or monetary value. You could appoint a specific person to deal with these assets or make other specific provisions for them.

It might also be a good idea to let your executors know what digital assets you own and how to access them. 

Do you want to donate to a charity?

You can provide a gift (usually money) to chosen charities in your Will. This could be out of your residuary estate or specific sums set out in the Will. If you gift enough of your estate to charitable causes, it may also reduce the inheritance tax payable on your estate.

Do you want to make sure someone doesn't benefit from your estate?

If you have separated from a partner but not dissolved your marriage or civil partnership, they will still inherit a significant proportion of your estate under the law. These rules are rigid and won't be deviated from, so if you don't want a partner you have separated from to benefit you need a Will to make this clear and state who should benefit instead. 

It is possible your Will could be contested. However, it helps to set out your wishes and intentions if a claim was made. Also, if you've had a dispute with someone, you can use your Will and a letter of wishes to make it abundantly clear that you do not want them to inherit from you and the reasons why.

 

About the author

Susan has over 30 years experience as a private client solicitor, working for many years in London for charities, high net worth individuals and those with overseas connections.

Susan Floyd

Susan has over 30 years experience as a private client solicitor, working for many years in London for charities, high net worth individuals and those with overseas connections.

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