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Guide to Making a Will

The prospect of planning for what will happen to your property and your loved ones after you die can seem like a difficult issue to deal with. Making a will, however, is vital as it allows your wishes to be carried out after you die. This is especially important if you have a spouse or children you want to ensure are provided for on your death.

A will gives you a lot of flexibility to decide exactly what you want to happen to your property on your death. It ensures you can appoint people you trust to ensure that the wishes set out in your will are carried out and the people and causes (charities, etc) you care about are taken care of.

When making a will you can also obtain financial advice to try to ensure that your beneficiaries will not have to pay any unnecessary taxes to the government after you die.

With wishes, taxes, children and other important issues involved, it is imperative that a will is drafted properly by someone who knows how. A huge amount of careful planning may come to nothing if the drafting is wrong.

What is a will?

A will sets out in writing what you would like to happen to your money and property on death. It can also include your intentions and wishes about how your children are looked after if they are under 18.

A will can be revoked or changed at any time during your lifetime.

Why is it important to make a will?

A will is the only way of making sure that your intentions and wishes are carried out after you die. If you do not make a will you lose the chance to have a say in what happens and who inherits your estate. This will be decided by the rules of intestacy.

This is a simple way of looking at it but, we hope you will agree it makes a lot of sense to make a will however much money or property you leave behind. Even if your estate is small and your intentions are simple, you should always make a will.

What are the benefits of having a will?

  • Peace of mind – You can make sure your property will go to the people you intend it to go to and that your loved ones and the causes or charities you care about are provided for on your death.
  • Saving on time and cost – Without a will, the process of organising your property after death is likely to take longer and cost more money unless your estate is small. These extra costs will reduce the amount of money and property available for those who stand to inherit.
  • Avoiding family disputes – You can clearly set out in writing who you want to leave your money and property to and in what proportions. The absence of a will may cause family disputes which can escalate to include court proceedings, wasting huge amounts of money.
  • Saving on Inheritance Tax – Making a will means you can distribute your estate in the most tax efficient manner so as to reduce the amount of inheritance tax you may have to pay.
  • Creating trusts – You can create trusts in your will for the benefit of your loved ones when you die (please see our Trusts guide for more information on this).
  • Appointing executors you trust – You can appoint people you trust to deal with the probate process which includes paying off any debts and distributing your estate in accordance with your will. You can also appoint legal guardians if you have children under the age of 18.
  • Funeral wishes – You have the opportunity to set out your wishes about the burial and disposal of your body, including any wishes about the use of your body for medical purposes.

Won’t my family inherit anyway?

Yes, your family will inherit your estate (under the ‘Intestacy Rules’) but it may not be in accordance with how you would want your estate distributed and it may not be tax efficient.

Many people have a misconception that their close family will inherit their property after death such that they do not need to make a will. Whilst this is true in some cases, it is not always that simple. Without a will you do not have any control over which family member inherits and how much they inherit. This will be decided by the intestacy rules (please see our Probate guide for more information on this).

These rules are inflexible and the process of identifying who is entitled to inherit and distributing the property to those people is likely to take longer and is a more complicated process than when there is a will.

It is likely that whoever stands to inherit under the intestacy rules will have to seek professional advice which will result in them incurring additional costs. This will undoubtedly reduce their share of any inheritance.

Having a will removes any uncertainty over who you want to inherit your property and aims to avoid disputes between relatives.

How to write a will

Before you write your will, you need to consider a few essential things: –

  • Value your estate – list your assets (property, valuables, investments, etc) and your debts so you have a good idea of how much your estate is worth.
  • Decide how you want to divide your estate – think about whether you want to leave specific sums of money (known as a ‘legacy’) to specific people or charities, what you want to do with your property and where the residue (what’s left) goes. You also need to consider what you want to happen if any of your beneficiaries die before you do and what happens then to their legacy or share of the residue.
  • Choose your executors – these are the people (usually two) who you trust to carry out your wishes after your death.
  • Write your will – many solicitors offer this service and charities will sometimes pay for your will to be written (such as the Cancer Research Scheme). Some banks offer a will writing service too. Also, in November every year, there is the Will Aid Scheme where solicitors write your will for free in return for you making a charitable donation.
  • Sign your will – you need two witnesses to witness you signing your will and these must not be beneficiaries under your will.
  • Store your will safely – it’s very important that the original will can be located after you die. Store it safely at home or you can often store it with the solicitor who wrote it for you (if you use a solicitor to write your will). Make sure your executors know where the original will is.

Further detail on all of these considerations is provided later in this guide.

As indicated above, you can write your own will or you can instruct a solicitor to draft one for you.

Although you may have heard of wills that you can purchase (known as “off-the-shelf” wills) there is the risk that mistakes can be made in filling them out, making them invalid. The way they are set out may mean that they don’t reflect your intentions and wishes.

It is advisable for a solicitor to draft your will as they have the knowledge and expertise to advise you on how to tailor your will to fit your own unique circumstances. They can also give you advice on making your will as tax efficient as possible.

Solicitors also have a professional duty to ensure that the necessary steps are taken for you to sign and witness your will correctly. This provides you with the peace of mind that your will reflects your exact wishes and that it is ultimately a valid one.

If you prepare your will yourself without any legal advice and it is deemed invalid after your death, your estate with then be distributed in accordance with the intestacy rules, i.e. as if you had no will at all.

What is needed to make a will valid?

You must have the capacity and intention to make a will and it must be signed and witnessed in the correct way.

The will must also be in writing.

A will cannot be witnessed by someone who will inherit something under it. Nor can it by witnessed by a spouse/civil partner of that person. If this happens they cannot inherit under the will.

What issues should I consider before making my will?

It is important that your will is clear about what you would like to happen to your estate. There are certain issues you should be clear about such as;

Choosing your executor(s)

Executors are people who you choose to deal with your estate after your death. They will make sure that your debts are paid and the intentions in your will are carried out. You can appoint as many executors as you like, but a maximum of four can act at any one time.

It is advisable to choose more than one executor and to appoint a substitute executor should any of these die in your lifetime.

You should make sure that these executors are willing to act on your behalf and are suitable for the work and responsibility that the role involves. You can also appoint professional executors, such as solicitors.

You should note that if a will contains a trust then the executors are usually also the trustees (for more information see our Trusts guide).

Choosing your beneficiaries

Beneficiaries are the people or organisations who you choose to inherit all or part of your estate. You can divide your estate between different beneficiaries in certain proportions and/or you can make specific gifts to specific beneficiaries. It is always advisable to include substitute beneficiaries in your will in case a beneficiary dies in your lifetime. It’s also quite normal for an executor of a will to also be a beneficiary.

Valuing your estate

It is advisable to draw up a list of your assets and liabilities so that you have an idea about the value of your estate. This value will always be subject to change on the date of death.

Assets will usually include:

  • your home (and any other properties you own including foreign property)
  • investments, such as stocks and shares
  • savings in bank or building society accounts
  • trust property
  • insurance policies
  • pension policies such as “death in service” pensions
  • motor vehicles
  • personal belongings, such as jewellery, furniture and other household contents.

It is important to note that any property held under a “joint tenancy” cannot pass under a will. You should seek legal advice as to what can be done to ensure that this type of property can be included in your will.

Liabilities will usually include:

  • mortgage
  • bank overdraft
  • domestic bills
  • loans

How do I make changes to my will?

You can make changes to or revoke your will at any time during your lifetime. You should review your will at least every five years or when there is a major event in your life for example, having children, getting married or moving house (also, see below the explanation of what happens on marriage or re-marriage).

You can change your will by revoking your old one and making a new one or by adding a codicil to the original will. A codicil is a document which is attached to the will and sets out any amendments/additions that you want to make to the original will. It must be signed and witnessed to ensure it’s valid.

Can a will be automatically changed or revoked?

Yes. In general, if you get married this will automatically revoke any will that you have at that time. The only exception to this is if you expect to marry a particular person and this is made clear in the will.

You can revoke your will by destroying the whole or any part of it and it is destroyed with the intention of revoking it.

If you get divorced or get an annulment, anything your ex-spouse or ex-civil partner stands to inherit under your will is automatically revoked. Also, if you chose that person to be an executor and/or trustee in your will they cannot act in this role.

Can my will be changed after I die?

Yes. Any change should be done within two years of the date of death via a ‘deed of variation’. It is usually done to reduce the inheritance tax payable. All beneficiaries must agree to the changes before the will itself can be changed.

Can someone who is not in my will make a claim against my property after I die?

Yes. A spouse, unmarried partner, child or other dependent have the right to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The person bringing the claim needs to demonstrate that they were left “without reasonable financial” provision for that claim to succeed.

It is sensible to obtain legal advice as to who could make a claim on your estate even if you have a valid will.

If you want to make a claim on someone else’s will you should also seek legal advice about your prospects of success.

Contact a Wills Solicitor

This guide is meant to be a helpful overview of wills. It is should not be used as a substitute to seeking legal advice on your specific circumstances. If, having read this guide, you feel you would like to make a will or have your existing will reviewed you should seek specialist advice.

If you would like advice on any of the issues discussed in this guide, please do not hesitate to contact a member of our Wills Team or get in touch on 020 8492 2290.

© Guile Nicholas Solicitors

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