Why do I need a Will? When you die it is important that the things you leave behind go to those people you would like to have them, whether it be a favourite brooch to a friend or a substantial gift to a child, grandchild or a charity. This is may not happen unless you leave behind a legitimate Will. |
A Will is a legal document, which sets out who you would like to receive your property and possessions after you die. It is particularly important if you leave behind children who are dependent on you or if you wish to leave money to a partner who is not your wife/husband or civil partner. Parents of young children need to carefully consider how and by whom they would want children cared for should the parents die while the children are still young.
If you die without leaving a valid Will, your assets will be distributed according to standard rules, which usually means that your assets will pass to family members such as to your spouse or civil partner (but not ordinarily to a partner to whom you are not married/who is not your civil partner) or your children which may be not what you would have chosen.
Particularly if you have a complex family arrangement e.g. you are separated and have a new partner but have not yet married, or you have children from different relationships, or stepchildren, or if you die with no spouse and no children, the standard rules may not result in your wishes being met. It is vital that you make a Will if you want to leave gifts to particular people or charities. Making a will may also provide scope for you to plan for the tax consequences of your death if relevant, and if you so wish.
As your Will can cease to be valid if you marry, and certain terms in it can be cancelled if you divorce, it is important to make a new Will if you marry, divorce, are separated for a long time or, depending on your will, if one of your beneficiaries dies.
Changing your Will
You can change your Will whenever you like but there are legal means to do so – you can’t just change your Will by crossing something out and writing something different. If you want to make a major change to your Will, then the best approach is to make a new will. If you want to make a minor change, you can make a codicil, which is effectively an authorised amendment to the Will, in writing and signed, dated and witnessed by two people, who must sign in your presence.
Beneficiaries
The people you nominate in your Will to receive your property and possessions after you die are called ‘beneficiaries’. You may nominate any persons you so choose as your beneficiaries. However, by law you have an obligation to provide adequately for those who are dependent on you such as your spouse and your children. It is important to note that other people may also fall into the category of dependants within the meaning of the law. If you fail to make adequate provision for dependants, they may challenge your Will and bring a claim against your estate.
If there is any likelihood that your Will maybe challenged, then you have a responsibility to take steps to minimise the risk of this happening. This includes talking to those around you so that your intentions are well known beforehand. You may also want to explore having those who you think may inappropriately challenge your Will sign a document stating that they will honour your wishes, and writing a separate letter and or making a video explaining the back ground and circumstances as to why you made the decisions you did.
Executors and Trustees
In your Will you also need to nominate people to manage your affairs after you die and to administer your Will, which will include paying from your estate any Inheritance Tax that is due. It is important to give due consideration to whom you nominate to these positions as you are entrusting them to carry out your wishes with no bias, favouritism or jealousy. It is also important to check that anyone you nominate is comfortable taking on the responsibility of administering your Will. It is often a good idea to appoint at least one person who is younger than you, in case the ones you have appointed die before you do.
The person or people you nominate to administer your Will are called the executor and the trustee.
It is usual to choose the same people to perform both roles, but you can name different people as executors and trustees.
You can name as many executors as you like, but only 4 executors can be granted Probate. Any named executors to whom probate is not granted stand ‘in reserve’. You should consider appointing at least two trustees, as certain trustee activities need to be performed by two people, and cannot be performed by a sole trustee. Most people appoint two executors or more executors or an executor and an alternative executor in the event that one executor is not in a position to act or dies before the other does.
Making a will
In addition to the considerations already mentioned, before making a Will, you should detail all your assets e.g. property, bank accounts, pension assets and investments such as shares, as well as your liabilities. Even if you are leaving all your assets to one beneficiary, having a list makes the executor’s job much easier and allows your estate to be settled with minimal fuss.
A valid Will must be:
o in writing (either handwritten or typed),
o dated,
o signed by you in the presence of two witnesses, who need to sign the Will stating that they have witnessed your signature. They must do this in your presence.
Although a document which you have drafted yourself may be taken as a legal document, there are many pitfalls in this approach and a possibility that your Will may be declared invalid. It is highly recommended that people use a solicitor or other appropriately qualified professional to draw up their Will.
Storing your Will
Once your Will is complete you need to always keep your Will in a secure place such as in a safe or with your solicitor. If your Will cannot be found, you will most likely be deemed to have died intestate (without a will). You also have the option of leaving a certified copy of the Will with your executor. At the very least, your executor should be advised of the location of the original Will.
Should you feel it necessary to explain your intentions in more detail, you may give your executor a letter separate from your Will. While your Will becomes a public document, your letter remains a private document between you and your executor unless your will is challenged, in which case it will likely be used in court proceedings to show why you made certain decisions. Unlike your Will, such a letter will generally not be binding on your executor.
Further Information
Further information may be found at the following websites:
https://www.gov.uk/make-will/overview
https://www.citizensadvice.org.uk/relationships/death-and-wills/wills/
Catherine J., UK & Anne McR., Australia
NOTE: Unless otherwise stated, the information in this document is based on the laws of England. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute, and is in no way an alternative to obtaining professional legal advice.
If you die without leaving a valid Will, your assets will be distributed according to standard rules, which usually means that your assets will pass to family members such as to your spouse or civil partner (but not ordinarily to a partner to whom you are not married/who is not your civil partner) or your children which may be not what you would have chosen.
Particularly if you have a complex family arrangement e.g. you are separated and have a new partner but have not yet married, or you have children from different relationships, or stepchildren, or if you die with no spouse and no children, the standard rules may not result in your wishes being met. It is vital that you make a Will if you want to leave gifts to particular people or charities. Making a will may also provide scope for you to plan for the tax consequences of your death if relevant, and if you so wish.
As your Will can cease to be valid if you marry, and certain terms in it can be cancelled if you divorce, it is important to make a new Will if you marry, divorce, are separated for a long time or, depending on your will, if one of your beneficiaries dies.
Changing your Will
You can change your Will whenever you like but there are legal means to do so – you can’t just change your Will by crossing something out and writing something different. If you want to make a major change to your Will, then the best approach is to make a new will. If you want to make a minor change, you can make a codicil, which is effectively an authorised amendment to the Will, in writing and signed, dated and witnessed by two people, who must sign in your presence.
Beneficiaries
The people you nominate in your Will to receive your property and possessions after you die are called ‘beneficiaries’. You may nominate any persons you so choose as your beneficiaries. However, by law you have an obligation to provide adequately for those who are dependent on you such as your spouse and your children. It is important to note that other people may also fall into the category of dependants within the meaning of the law. If you fail to make adequate provision for dependants, they may challenge your Will and bring a claim against your estate.
If there is any likelihood that your Will maybe challenged, then you have a responsibility to take steps to minimise the risk of this happening. This includes talking to those around you so that your intentions are well known beforehand. You may also want to explore having those who you think may inappropriately challenge your Will sign a document stating that they will honour your wishes, and writing a separate letter and or making a video explaining the back ground and circumstances as to why you made the decisions you did.
Executors and Trustees
In your Will you also need to nominate people to manage your affairs after you die and to administer your Will, which will include paying from your estate any Inheritance Tax that is due. It is important to give due consideration to whom you nominate to these positions as you are entrusting them to carry out your wishes with no bias, favouritism or jealousy. It is also important to check that anyone you nominate is comfortable taking on the responsibility of administering your Will. It is often a good idea to appoint at least one person who is younger than you, in case the ones you have appointed die before you do.
The person or people you nominate to administer your Will are called the executor and the trustee.
- An executor’s role is to obtain probate, pay your debts including any tax that is due, and distribute your assets in line with your Will.
- A trustee administers any trusts set up in the Will e.g. a Testamentary Trust.
It is usual to choose the same people to perform both roles, but you can name different people as executors and trustees.
You can name as many executors as you like, but only 4 executors can be granted Probate. Any named executors to whom probate is not granted stand ‘in reserve’. You should consider appointing at least two trustees, as certain trustee activities need to be performed by two people, and cannot be performed by a sole trustee. Most people appoint two executors or more executors or an executor and an alternative executor in the event that one executor is not in a position to act or dies before the other does.
Making a will
In addition to the considerations already mentioned, before making a Will, you should detail all your assets e.g. property, bank accounts, pension assets and investments such as shares, as well as your liabilities. Even if you are leaving all your assets to one beneficiary, having a list makes the executor’s job much easier and allows your estate to be settled with minimal fuss.
A valid Will must be:
o in writing (either handwritten or typed),
o dated,
o signed by you in the presence of two witnesses, who need to sign the Will stating that they have witnessed your signature. They must do this in your presence.
Although a document which you have drafted yourself may be taken as a legal document, there are many pitfalls in this approach and a possibility that your Will may be declared invalid. It is highly recommended that people use a solicitor or other appropriately qualified professional to draw up their Will.
Storing your Will
Once your Will is complete you need to always keep your Will in a secure place such as in a safe or with your solicitor. If your Will cannot be found, you will most likely be deemed to have died intestate (without a will). You also have the option of leaving a certified copy of the Will with your executor. At the very least, your executor should be advised of the location of the original Will.
Should you feel it necessary to explain your intentions in more detail, you may give your executor a letter separate from your Will. While your Will becomes a public document, your letter remains a private document between you and your executor unless your will is challenged, in which case it will likely be used in court proceedings to show why you made certain decisions. Unlike your Will, such a letter will generally not be binding on your executor.
Further Information
Further information may be found at the following websites:
https://www.gov.uk/make-will/overview
https://www.citizensadvice.org.uk/relationships/death-and-wills/wills/
Catherine J., UK & Anne McR., Australia
NOTE: Unless otherwise stated, the information in this document is based on the laws of England. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute, and is in no way an alternative to obtaining professional legal advice.