• Why do I need a Will?
• What are the requirements for a valid Will?
• What happens if I die without making a Will?
• Why can’t I just have a home made Will?
• How often should I update my Will?
• What are mirror Wills?
• What are executors?
• Can I appoint guardians for my children in my Will?
• I am remarried, how can I leave my property to my children from an earlier marriage?
• What if a person who has made a will commits suicide?
• When is inheritance tax payable?
• Where should I store my Will?

Why do I need a Will?

• Specify who will inherit your assets. Making a Will is the only way to ensure that your assets go to your loved ones in the way that you would like. If you have not made a Will the law decides how your estate is distributed and in some cases it may go to the Crown.

• Unmarried partners. If you are living with someone but are not married to them it is critical that you make a Will to protect them, otherwise they may get nothing. Unmarried partners have very little protection in law and the idea of a ‘common law partner’ has no legal standing.

• Personal possessions. Even if you do not have substantial financial or property assets you may still have important personal possessions which you may wish to leave to particular people.

• Nominate guardians for your children. A Will is particularly important if you have children as you can specify who you would like to look after them if you died. 

• Avoid family disputes. If you do not leave a Will you are increasing the chances of your estate being disputed my family members later on. By making a Will you can avoid any dispute by making it clear exactly what you want to happen.

• Specify your funeral wishes.

• Make donations to charity or favoured causes.

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 identify 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 happens if I die without making a Will?

If you die without leaving a Will (intestate) your estate is distributed according to the laws of intestacy. The laws specify how assets are distributed to family members in a fixed order. If you have no family members then your assets will go to the crown.
The danger of dying intestate is that you will have no say in who gets what. Family members who you may not wish to could inherit your assets. Likewise, people who are not blood relatives, such as unmarried partners, may not receive anything.

Why can’t I just have a home made Will?

Many people write home made Wills or buy Will making kits from stationers in the belief that they will be effective. In many cases they are not because of mistakes made or lack of understanding of the law.
It is important to remember that the cost of a professionally written Will includes the advice given by an expert. 
There are many rules which govern how Wills are drawn up and witnessed. If you have an incorrectly written Will it may be disregarded or ineffective when you die. This can result in you effectively being intestate (see above) and your assets not going to those you wish. The legal costs incurred to rectify any errors in a home made Will may well exceed the cost of a professionally prepared Will.
A professionally written Will from Direct Will Writers is surprisingly inexpensive and gives you the peace of mind that your wishes will be carried out.

How often should I update my Will?

If you have already made a Will it is important that it is kept up to date to reflect your current circumstances. You should review your Will whenever your circumstances change in any significant way. Things which may affect your Will include:

• Divorce or separation
• Having children
• Buying or selling a large asset such as a house
• Marriage

As a general rule it is recommended that you have your Will checked regularly to ensure that it still reflects your requirements.

What are mirror Wills?

Mirror Wills is the term applied to almost identical Wills made by a husband and wife. It relates to when both parties have the same Will but in reverse, for example, they leave everything to the other partner and thereafter to the children.
The surviving partner is usually the executor, although it is important to add an additional executor in case both partners were to die at the same time.
For couples it is not possible to have a joint Will. Each person must have their own Will, although the cost of making mirror Wills is usually less than the cost of making 2 Wills independently.

What are executors?

The executor will be in charge of winding up your estate - this means paying your debts, selling your property if necessary and handing over the balance to those entitled to it. The executor has no role to play until after your death. They will collect in your assets, pay all your debts and any inheritance tax, deal with any specific legacies that you have left and then distribute the remainder of your estate in accordance with your wishes.

If you have any children they will also act as trustees to look after monies until they are old enough to inherit and they Will also be able to use the trust money to help support them in the meantime.

You can appoint up to four executors including one of the beneficiaries (e.g. your spouse/partner), it is common for a Will to appoint a main beneficiary as an executor). If you appoint your spouse/partner they can act on their own (with reserves appointed to act if they die before you) or jointly with another person or persons.

We recommend that you appoint at least two executors in case one of them is unable to act for whatever reason.

Make sure that your chosen executors are prepared to act because they cannot be forced to do so.

When your Will is completed it should be kept in a safe place and you must tell your executors where it is stored.

Can I appoint guardians for my children in my Will?

Yes. If you have children under 18 it is important to consider who would take care of them in the event of both parents passing away at the same time.
While family members may step in to care for them, it may not be who you would choose to do so. Appointing guardians enables you to have some say in who would bring them up. It can also help to avoid disputes between opposing family members who would all like to help. By stating your wishes in a Will you can make it clear exactly what you would like to happen.
In choosing guardians consideration needs to be given to the age, health and financial circumstances of the selected parties.
Our experienced lawyers can help you with appointing guardians in your Will.

I am remarried, how can I leave my property to my children from an earlier marriage?

If you have remarried and have children from a previous marriage it is possible to ensure the financial security of your current spouse whilst still protecting your children’s inheritance.

With a standard Will, if you leave everything to your new partner your assets would become theirs. When they die those assets would then be passed to their beneficiaries, who may be their own children, thus depriving your children of any inheritance.

With a ‘Life interest Will’ it is possible to avoid this situation. The family home is a perfect example. You may wish to leave this to your children eventually, but still enable your current partner to live in it after you have died. It is possible to give your partner a life interest in the property, which means that after you die they can live in the property until they die (or remarry if you wish), at which point it passes to your beneficiaries.
In this way you can protect both your partner and eventual beneficiaries.

What if a person who made a will commits suicide?

If a person who made a will commits suicide, the will is still valid.

When is inheritance tax payable?

Any assets passed to a husband or wife are exempt and the first £325,000 of your estate (the Nil Rate Band) will also be free of inheritance tax but everything above that figure Will be taxed at 40%.

When considering whether any inheritance tax will be payable on your estate you should add up all of your assets (property, savings, stocks and shares, premium bonds etc) and then deduct any liabilities (mortgage, credit cards, loans etc).

Remember not to include anything that ill not form part of your estate (e.g. property held jointly with someone else as joint tenants and usually any life policies and pensions).

If your net estate is more than £325,000 tax will also be payable on any gifts (exceeding more than £3000 in total in any tax year) made within 7 years of your death but again this does not include anything given to your spouse.

It is important to know that all gifts to a registered charity are tax free and there are also tax allowances for some gifts of agricultural or business interests.

Where should I store my will?

The most important consideration is that your Will should be easily found when you die, to ensure your wishes are carried out. Someone needs to be made aware that you have made a Will and also where it is stored.
Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep a will:-

• at home
• with a solicitor
• at a bank
• at the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry for safe keeping. If you wish to deposit a will in this way you should visit the District Registry or Probate Sub-Registry or write to:-
  
  The Probate Department
  The Principal Registry of the Family Division
  First Avenue House
  42-49 High Holborn
  London WC1V 6NP
  Tel: 020 7947 6000

 

 

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