When to make a Will

Will writing is one of the most important things you can do for your family and we therefore recommend that everybody should:-

1. Write a Will that is valid and meets all the legal requirements.

2. Update a Will. We recommend that you review your Will regularly and if your personal circumstances have changed you either write a new Will or prepare a smaller document called a Codicil to reflect your change in circumstances.

Why it is important to make a Will?

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

1. if you die without a Will, the intestacy rules dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed. Your spouse or partner may not inherit everything you leave.

2. unmarried partners or 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.

3. 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.

4. it may be possible to safeguard part of your property not being used for nursing home fees if one spouse is in a residential home and the other spouse living in your house dies.

5. 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 marry this will make your previous Will invalid.

What should be included in a Will?

To save time and reduce costs when going to a Solicitor, you should give some thought to the major points which you want included in your Will. You should consider such things as:-

1. 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.

2. 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 also need to consider whether you wish to leave any money to charity.

3. who should look after any children under 18.

4. who is going to sort out the estate and carry out your wishes as set out in the Will. These people are known as the executors and trustees.

5. Questionnaire – this may help you to decide upon your wishes.

Who are the executors and trustees?

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. Once they have completed the administration of the estate and if there are trusts arising from the Will and they hold assets for the benefit of beneficiaries, the executors are then known as trustees.

Who to choose as executors?

It is not necessary to appoint more than one executor although it is advisable to do so, for example, in case one of them dies. It is common to appoint two, but up to four executors can take on responsibility for administering the Will after a death. The people most commonly appointed as executors are:-

  • Relatives or friends
  • Solicitors or Accountants

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.

A Will includes the following clauses

1. Revocation – as soon as the Will is signed all previous Wills are revoked and therefore are no longer valid.

2. Appointment of executors and trustees.

3. Gifts – you should consider whether you have any legacies or items to be given to any beneficiaries. Normally the gifts are free of inheritance tax and if there is any tax to pay it is payable by the residuary estate.

4. Trust – sometimes Wills include trusts. These could be for example discretionary trusts or life interest trusts or accumulation of maintenance trusts. Trusts are used to protect part of your estate and mean that the beneficiaries do not receive the gifts outright. The assets in the trust may be payable to the beneficiaries at the discretion of the trustees (this is a discretionary trust) or held on life interest for the benefit of the life tenant such as being given a right to occupy a property for the rest of a person’s life (life interest trust) or provide for minor beneficiaries’ interest in the estate to be held for them until they attain the age of 18 (accumulation of maintenance trusts).

5. Residuary estate – the residuary estate means that all the assets in the estate will be collected together, out of these all the legacies, outstanding bills, funeral expenses and taxes will be paid out first, whatever is left after such payment is called a residuary estate.

Normally the residuary estate is left to the surviving spouse but you also need to consider what is to happen if your spouse has died before you.

If the estate is then divided between a number of beneficiaries, is it divided equally between them or do you want each of them to have a percentage. You also need to consider what would happen if those named beneficiaries died before you, would you wish their share of the estate to go to their children or to the other remaining beneficiaries?

6. Administrative clauses – the Wills will also include administrative powers to enable the executors and trustees to administer the estate as efficiently as possible.

7. Finally the Will includes the signing clauses. It must be signed and dated and the testator must sign the Will in the presence of two independent witnesses who also sign and add their name, address and occupation. Please remember that a beneficiary or the married partner of a beneficiary must not witness the Will as if they do the Will is still valid but the beneficiary will not be able to inherit under the Will.

As soon as the Will is signed and witnessed it is complete.

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:-

1. getting married, remarried, or registering a civil partnership.

2. getting divorced, dissolving a civil partnership or separating.

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

How to change a 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.

Codicils

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.

Making a Will

If you wish to make major changes to a Will, it is advisable to make a new one. The new Will should begin with a clause stating that it revokes all previous Wills and Codicils. The old Will should be destroyed. Revoking a Will means that the Will is no longer legally valid.

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.

What next?

If you have not made a Will before and wish to do so or wish to update your existing Will then please contact us in one of our offices to come and see us to discuss your particular circumstances. We will then take your instructions and prepare a draft Will for your approval. You can then make any number of amendments you wish and when you are satisfied with the draft Will, we will prepare the final version for you to sign. You can then either attend our office for signing or we can send the document for you to sign at home after which we must check that the Will has been signed correctly. Once you have made your Will it can be stored in our offices for safekeeping at no extra charge to you and we will then give you a copy of the signed document for your own records.

And afterwards…?

You should review your Will periodically to ensure that it remains relevant to your circumstances.

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