5 Things To Consider When Making A Will
Being clear about your wishes, and setting them out legally, could save your loved ones a lot of heartache and stress in the future.
As you read this article you will see that not all Wills are as straight-forward as others. If you are in any doubt please seek professional advice from a solicitor.
5 things to consider when making your Will:
1. Your Estate
Be clear about your estate. Your estate is the money, possessions, and property that you own. It can include property, occupational and personal pensions, insurance policies, savings, bank account balances, building society accounts, premium bonds, stocks and shares.
You will want to be clear on the value of your estate, whether you need to make provision for Inheritance tax, and what your wishes are for how everything should be dealt with once you have passed away.
It is especially important to be clear about joint assets. For example, if you own a property with other parties as joint tenants then your share of the property would pass to the surviving joint owner automatically; however if the property is owned as tenants in common then your share of the property will pass in accordance with your Will (or under the rules of intestacy if you don’t make one).
It is important to consider who you wish to leave your estate money and possessions to (your estate), and to name these people in your Will. These people are known as the beneficiaries of your Will.
You may choose to leave some money or possessions to charity. If the value of your estate is over the Inheritance Tax threshold then you may be interested to learn that there will be no Inheritance Tax on this gift, and if it is 10% of your net estate then the rate of inheritance tax that would have to be paid on the remainder of your estate reduces from 40% to 36%.
Please note that a Will can be challenged by certain people if they are not named in a Will, which can result in considerable upset and legal proceedings. For example, in England and Wales the Inheritance (provision for family and dependants) Act 1975 allows for people who are not named in a Will, but can demonstrate that they were maintained by you, and have a financial need, to claim financial provision from your estate even when they have been left nothing or little in it.
A Will can also be challenged if you have made a promise to give something to someone, they have relied on that promise, and suffered a detriment as a result. The person can make a claim to have the promise fulfilled.
3. Care of Children
If you have children then perhaps the most difficult consideration is who to choose to care for any children under 18.
You can name a person in your Will who you feel would be best to raise your child or children if you were not there, to act as a legal guardian.
If both parents are no longer in a relationship and have separate Wills, it is important to discuss and agree on a legal guardian together.
Another consideration is whether children inherit at age 21 or 25 rather than 18, or whether they receive a share of their inheritance at 18 and the remainder at a later date. It is important to decide who would be best to make financial decisions on behalf of your children during this time, and to name these trustees in your Will.
Executors are the people that you choose to sort out your estate and carry out the wishes that you set out in your Will. They should be people that you feel you can trust and who are willing to take on the role. It is a good idea to choose at least two executors, so they can share the responsibility. You can appoint up to four people as your executors and the people that you choose should be named in your Will.
5. Formal Requirements
There are formal requirements that need to be fulfilled for a Will to become legally valid. If these are not complete then the Will is not valid:
- it must be in writing
- signed by the person who made the Will (the testator), or signed by someone else at the testator’s direction
- have been signed in the presence of two witnesses, who also need to have signed the will
The Mental Capacity Act also sets out that the testator must have Mental Capacity when signing the Will, that is, they must be able to understand all the relevant information and reasonably foreseeable consequences.
It is advisable that a Will is dated so that it is clear when the wishes were made, and if there is another Will, whether it was made after to supersede it.
Wills should be written carefully. For example the law will not recognise step-children unless they are named or the Will is clear that the definition of children extends to stepchildren.
A witness or the married partner of a witness cannot benefit from a will
Nominating a Lasting Power of Attorney is also advisable: please see this article
Following death, wills become public documents
If you don’t make a will, you will die ‘intestate’. The rules for how your estate will be distributed are called intestacy rules. These are as follows:
If you have a spouse or civil partner and children
Your spouse or civil partner will inherit all your personal possessions and the first £270,000 of your estate, plus half the rest. The other half of the balance will be divided equally between your children.
If you have a spouse or civil partner but don’t have children
Your spouse or civil partner will inherit your whole estate, including your personal possessions.
If you and your partner aren’t married or in a civil partnership
Your partner has no automatic right to inherit from your estate, even if you have lived together for a long time or if you have children together.
If you have children and your spouse or partner is deceased
Your estate will be divided equally between your children.
If you don’t have a partner or children
Parents, brothers, sisters, nieces and nephews may inherit your estate.
If you have no obvious surviving relatives, this is known as bona vacantia. If you have no Will then The Treasury Solicitor will become responsible for dealing with your estate. For more information about bona vacantia visit https://www.gov.uk/hmrc-internal-manuals/bona-vacantia-manual
Our Wills and probate team have many years’ expertise in Will writing and are here to help guide you through the process and options available to you. If you need assistance in writing a Will, setting up Trusts or dealing with probate, call us today on Bradford 01274 735511, Ilkley 01943 601173 or Bingley 01274 723858.