making a will

Many of us choose not to think about the reality of death and by doing so often postpone planning issues that are so important in order to ensure the welfare of our family and loved ones in the event of death. As a consequence, over two thirds of adults die without leaving a valid Will causing significant problems for surviving family and others compounding the distress at an already difficult time.

Anybody who owns property, and who cares about what happens to it on their death, should make a Will. Even those who have already made a Will should ensure that it is reviewed periodically to make sure that it continues to take account of changed circumstances and wishes.




The pitfalls of having no Will

  • The intestacy rules apply and your estate will be distributed as the law determines rather than in accordance with your wishes.
  • Disputes may arise  between members of your family as to how your estate is to be distributed and part of that estate may be used up in legal costs in resolving that dispute.
  • There may be more tax to pay from your estate.

  • A surviving unmarried partner will have no automatic claim to any part of your estate.
  • Business partners may be left exposed putting the business at risk.  
  • You may think that if you die before your spouse, without making a Will, all your property will automatically be left to him or her – but this is not so.
  • If you die leaving over £125,000.00, your children, to claim their entitlement, may force a sale of any house forming part of your Estate occupied by your spouse.



The advantages of making a Will

You choose precisely how your property and possessions should be dealt with in the event of your death allowing peace of mind knowing that your affairs are in order.

Various other advantages exist including :-

  • you can minimise and restrict tax liabilities;
  • you can appoint your own choice of Executor(s) to deal with your estate after death;
  • you can create trusts for your children, give instructions as to who will look after them and provide a framework for looking after their financial needs until they are sufficiently mature to do so themselves;
  • you can give particular gifts or sums of money to specific individuals;  
  • you can benefit charities;
  • you can make provision for the continuation and hand over of your business;
  • you can give due consideration to claims on your estate from first and second families;

Points to consider

  • Who do you wish to benefit from your estate?  Spouse, children, other family members, friends or charities?
  • If you have remarried how do you wish to resolve the competing claims of your first and second families?    
  • Who will you appoint as executors to deal with the getting in and distributing of your estate?    
  • Will you need to appoint guardians of any minor children who might survive you and your spouse?    
  • Will you need to create a trust if, for example, there are minor children?
  • Do you have any particular wishes for funeral arrangements or cremation?
  • Are there tax issues to consider to minimize tax liabilities?



What information do we need?

When considering the drafting of your Will and, in particular, the tax planning aspects appropriate consideration will need to be given to your overall financial situation. In particular, a record should be prepared of your property, assets and debts including :-

  • your home – is it owned jointly?
  • business assets – are they in your sole name, in the name of a partnership or company?
  • bank and building society accounts
  • stocks, shares or other investments
  • national savings
  • insurance policies
  • premium bonds
  • pension policies
  • unit trusts
  • household contents
  • furniture, antiques, jewellery, cars 
  • other personal possessions   - trust funds
  • second or holiday homes
  • assets abroad




What formalities are involved in making a Will?

For a will to be valid certain minimum requirements must be met.

The will must be:-

  • made by a person aged eighteen or over; and
  • made freely and without influence from any other person; and
  • made by a person who understands what he/she is doing, what property they own and are giving by their will and who is aware of the individuals who are to benefit as a result of that will; 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 that person has signed.



The will should be dated at the time of signature although a failure to do so will not invalidate the will.




Relevant Legal words defined


Administrator -  a person appointed by the Court to administer the estate of the deceased where no Will exists.



Administration clauses
– designed to assist the executors and trustees in administering the estate and any trusts arising under the Will. 



Adult
– a person over eighteen years of age.



Attestation clause
– the clause at the end of the Will where it is signed and which must be completed in accordance with certain rules to validate the Will.



Beneficiary
– a person who receives something from the Will.



Child
– can be legitimate, illegitimate or the adopted child of the Testator.



Codicil
– a second (or later) document that changes or adds to an existing Will.



Crown
– if no Will has been made and there are no relatives the estates passes to The Treasury.



Estate
– the possessions, property and money of the deceased.



Executor
– the people appointed in a Will to administer the estate of the deceased.



Guardian
– a person who takes legal responsibility for a minor child or children after the death of both parents.



Intestate
– dying without leaving a Will.



Legacy
– can be a gift of money (pecuniary legacy) or a gift of a certain item (specific legacy).



Minor
– a person under eighteen years.



Probate
– the legal procedure to establish that a Will (and any codicil) are valid and that the Executors named therein are authorized to deal with the affairs of the testator.



Residue
– the part of the estate which is left after debts, expenses, taxes and legacies have been discharged.



Testator/Testatrix
– the person who makes the Will.



Trust
– an arrangement whereby a person or persons holds and manages property for the benefit of another (a Will usually appoints the same individuals as executors and trustees). 



Will
– a legal document setting out the wishes of the testator for the distribution of his or her estate after death and which appoints executors/trustees.



Witness
– two independent witnesses are required to verify the testator’s signature on the Will.




Reviewing your Will

You should review your Will periodically but certain situations arise requiring such a review including :-

Marriage -  revokes a Will unless made in anticipation of a specific marriage.

Separation –  your spouse continues to have a claim on your estate no matter how long the separation has been unless there is a divorce.

Divorce -  automatically cancels any gift to a former spouse in a Will.

Alterations in financial circumstances – this may affect the value of your Estate and render you liable to inheritance tax.

Children/grandchildren
– the birth of children or grandchildren may require review of your Will.

Death of beneficiaries/executors
-  changes may need to be made in the Will in such circumstances.

 

If you wish to make or update a Will or would like to discuss your needs with us please contact us today.