Making a Will
Many people dislike the idea of making a Will, but doing so is essential to ensure your wishes are respected after your death. A Will can also make things much easier for your family, especially if you have significant or complex assets, or a complicated family structure.
Our experienced team can advise on all aspects of making a Will, including how best to protect your assets, minimise tax burdens and ensure dealing with your estate is as stress-free as possible for your family. We can also advise on updating a Will to reflect a change in your circumstances, such as marriage or divorce.
While seeking professional advice before making a Will is advisable, below is a general outline of the process and the benefits of making sure you have a Will in place.
What is a Will?
A Will is a legal document that allows you to specify who you would like to inherit your estate after you have died. You must be 18 to make a Will and of sound mind.
Why should I make a Will?
There are many reasons why you should complete a Will. The most important is that if you die without a Will in England or Wales, the laws of intestacy will decide who inherits your estate, and this may not be who you would have chosen. A Will should be considered as an investment to safeguard your family’s or loved ones’ futures.
CONTACT US
If you wish to discuss wills, probate, trust or powers of attorney with us, please call Simon Acworth on 01420 81276 or Alison Courtenay on 01420 81271. Alternatively, please fill in the form below.
What happens if I die without a Will?
If you die without a Will, which is referred to as dying intestate, your property and assets will be distributed according to the laws of intestacy. This means that your estate will not automatically go to the government if there are living relatives who can claim it. The distribution follows a specific order:
- If you have a spouse or civil partner, they will inherit part of your estate, with the balance split between your children. Any partner that you were not legally married to / in a civil partnership with would inherit nothing.
- If there is no spouse or civil partner, the estate goes to your children. If any child predeceases you, their share passes to their children.
- In the absence of children, the estate is divided equally between your parents.
- If your parents are deceased, your siblings (brothers and sisters) inherit equally.
- If there are no siblings, the estate goes to your aunts, uncles, and first cousins equally.
- If none of these relatives exist, your grandparents inherit equally.
- If there are no living relatives, the estate will go to the Crown or Treasury Solicitor.
Is it difficult to make a Will?
Making a Will can be relatively straightforward, depending on your assets and how you wish them to be distributed. However, it is always advisable to seek professional advice to ensure that such an important document serves its purpose.
Our experienced solicitors can guide you through this process and make it as straightforward and stress-free as possible. We will explain your options in plain English, avoiding legal jargon, to ensure your Will clearly and accurately reflects your wishes.
Why should I instruct a solicitor to prepare my Will?
It is important to instruct a solicitor to draft your Will to ensure that it is properly executed and reflects your wishes. A poorly drafted Will could result in additional and unnecessary expense, and even potential disputes between your beneficiaries.
In addition, solicitors belong to a regulated profession, which means they must adhere to certain professional standards and have appropriate insurance. Downie & Gadban is regulated by the legal industry body, the Solicitors Regulation Authority, so in the rare case that something were to go wrong, we are fully insured.
What is an executor?
In order for your estate to be distributed after your death, you should appoint at least two executors to carry out your wishes, especially if there are minor beneficiaries (i.e., individuals under the age of 18). An executor must be over the age of 18 and will be responsible for sorting all aspects of your affairs after you have died, including notifying people of your death, arranging your funeral, collating information regarding your assets and liabilities, and distributing your estate to your chosen beneficiaries.
Appointing an executor ensures that matters can be dealt with in a straightforward and efficient manner to help your family and friends at this difficult time. If you do not have a Will, the court will appoint an administrator to distribute your estate, and this may not be the person who you would have trusted to deal with your estate.
What is a beneficiary?
The people who you would like to benefit from your estate are called beneficiaries. A person named as an executor in your Will can also be a beneficiary of that Will. It is possible for a young child to be named as a beneficiary of a Will; however, their share of your estate will be held on trust by the trustees named in your Will until they reach the age of 18.
Do I have to leave anything to my immediate family?
You are not obliged to leave anything to members of your family in your Will. However, if you have children or any family members who are financially dependent on you, they could contest your Will and, if successful, claim a share of your estate.
It is essential to seek legal advice if you wish to exclude someone who may have a claim against your estate from your Will. Here at Downie & Gadban, we can advise on any potential repercussions of the contents of your Will.
Can I disinherit somebody in my Will?
It is possible to disinherit somebody in your Will, but you should be very careful about doing this and take legal advice before doing so. You can also leave a letter for your executors explaining your reasons for the omission. This could be used in court should there be a claim against your estate from that person.
Can I leave legacies in my Will?
Yes, you can leave either specific items or sums of money to particular beneficiaries or charities. However, there may be tax implications in doing so, and you should take legal advice on this when you are making your Will. Our team can advise you on the best way to structure any legacies so that they do not create an unnecessary tax burden.
You can also leave a letter of wishes for your executors regarding the distribution of certain personal items. This is useful as it can be updated at any time without having to change your Will.
Can I include a trust in my Will?
Yes, trusts can be a useful vehicle for Inheritance Tax planning and to protect assets for your beneficiaries. Legal advice should be taken if you are considering including a trust in your Will.
Can I specify who will look after my children if I die before they reach the age of 18?
If you have young children, you can specify in your Will who you would like to be their guardian in the event something were to happen to you and any other person with parental responsibility before they reach the age of 18. If you do not have a Will, the court will appoint guardians, and this may not be who you would have preferred. You will need two trustees to manage your children’s inheritance if they are under 18.
What is a trustee?
An executor can also be a trustee and their duty would be to invest monies on behalf of the beneficiaries. A trust can be discretionary to include various beneficiaries; it can be for the benefit of the spouse as an immediate post-death interest; or it can be a property trust or vulnerable person’s trust. There are different tax implications for varying types of trust, and you should take legal advice if you want to include these in your Will.
There are statutory trustees’ powers to apply trust funds for a minor beneficiary’s maintenance and education before they reach the age of 18, 21 or 25 (or whatever age you specify in your Will). Your trustees would act as bare trustees in this instance, meaning that the funds belong to the beneficiary absolutely upon reaching the specified age. Income can be paid to the beneficiary from the age of 18 with the capital sum being given at the age stated.
There are many different types of trust, and these can be complicated, so it’s important to seek specialist advice. Our Private Client team has experience in guiding clients through choosing the best type of trust for their needs and advising on the relevant tax implications.
What is a property trustee?
A trustee can hold a share of property on your behalf after you die for the eventual beneficiaries. This could be where you (the testator) leave a life interest for your spouse or partner – for example, so they do not have to leave the family home, even if you wish someone else, such as your children, to ultimately benefit from the property. The trust would generally come to an end on the death of the life tenant, after which the property can be sold.
The trustees would then need to distribute the net sale proceeds of the property in accordance with the terms of the Will.
How do I ensure my Will is valid?
For a Will to be properly executed, you are required to have two witnesses who must be over the age of 18, have the capacity to understand what they are doing and must be able to see you sign your signature. The witness cannot be a beneficiary or a spouse of a beneficiary. If you prepare a Will with a solicitor, they will usually provide witnesses on your behalf.
Can I change my Will after making it?
You can either make a new Will or a codicil to your Will. If you make a new Will, it will revoke any previous Wills made by you. It is important to ensure the relevant people know of any update, to avoid people depending on an outdated Will. Using a solicitor to prepare your Will can be useful in ensuring that after your death, the correct Will is referred to.
What is a codicil?
A codicil is a separate document that refers to and modifies an existing Will. It must be signed with similar formalities as those required for creating an original Will. It must not be attached to your original Will, but must be kept with it.
However, there is always a possibility that your codicil could be separated from your Will and your executors may be unaware of its existence. It may therefore be better to make a new Will to ensure that your estate is distributed according to your wishes.
I just got married / divorced – do I need to make a Will?
You should always create a Will, or review your existing one, if your marital status changes.
Marriage revokes a Will unless specifically stated otherwise in your previous Will. On divorce, any gift in your old Will to your ex-spouse is cancelled, as is their appointment as executor, but the rest of the Will stands. This can create problems, so it is better to make a new Will.
What if I am separated from my spouse but not divorced when I die?
If you are still legally married at the time of death – even if separated – your spouse will inherit part or all of your estate unless there is a signed separation agreement waiving this right. It is best to make a new Will if you separate from your spouse to ensure that your assets go to the right people.
You can download our Guide to Making a Will below:
The above information is for general guidance only and is not intended to replace legal advice. Any costs listed are accurate at the time of writing.
