Making a Will

Making a Will won’t kill you, but what will happen if you don’t make one?

Despite many people’s fears, there is no statistical evidence that making a Will is likely to lead to you being knocked over by a bus as you leave your solicitor’s office! Yet, surprisingly, only one in three adults in Britain have a Will.

You may assume that everything you own at your death will go to your husband, wife or partner, or perhaps you believe you have nothing to leave anyway. The fact is, without a Will, the Intestacy Rules say who gets what and your property would most certainly not go to those who you wish to receive it. Your friends and favourite charities get nothing.

You may be surprised to know that if you die leaving a spouse and children your surviving husband or wife would only inherit your personal effects, and £250,000 outright. The balance of your estate would then be paid as to the remaining 50% to your spouse and 50% to your children which, if they are under 18, will need to be held in trust for them. As a result, your surviving spouse may end up sharing ownership of the house with your children or others! This more often than not sets the parties on a difficult and distressing collision course.

For example:

Mr and Mrs Jones were involved in a tragic accident in which Mr Jones died instantly. Mrs Jones survived only to die in hospital a month later without regaining consciousness. They had no children and had failed to make Wills. Under the intestacy rules Mrs Jones inherited her husband’s estate, which on her subsequent death passed entirely to her brother and sister. Mr Jones’s family felt very unfairly treated. If you are unmarried your partner has no entitlement in law to any part of your estate, which would pass entirely to your family: children, parents, brothers and sisters, or more distant relatives.

What exactly is a Will?

A Will is a statement of your wishes, to take effect on your death, which remains changeable until then.

In a Will you are exercising choice over who gets what and a variety of other matters e.g. appointing executors, trustees and guardians, tax considerations and directions for burial. So, if you care about who benefits from your property after your death you MUST make a Will.

What are Executors and Trustees?

Executors are the people who you appoint in your Will to be responsible for your affairs after death.

This involves:

  • collecting in your assets after death.
  • paying the funeral account and any outstanding bills at death out of your assets.
  • working out who is entitled to inherit the remaining assets and distributing the assets to them.

Where there are trusts in a Will, often resulting from gifts to children who are minors (i.e. under 18) at the date of death, it is the Trustees who hold the funds for the children until they are entitled to payment under the terms of the Will. This is usually at the age of 18 or 21. Often the Trustees are the same people as the Executors.

The Trustees will hold the funds in appropriate investments. Subject to the Trustees being satisfied as to the need for money, they can use both the income and the capital for the maintenance, education or other benefit of the children. The money however, is in the Trustees’ control and not in the children’s control.

Who do I appoint as my Executors and Trustees?

An executor and trustee can also be a beneficiary. Therefore, most people usually appoint their wife or husband and/or children to act as executors and trustees.

Alternatively, if you feel that someone outside the family is needed, perhaps to act as an independent influence, you could appoint a close friend, one of the other beneficiaries, your Solicitor.

Should I appoint Guardians?

Yes. For anyone who has infant children it is particularly important to make a Will, if only to appoint Guardians.

Indeed, we believe it is irresponsible not to do so!

How do I start preparing to make a Will?

It will help us to help you if you have prepared a little before your first meeting with us and have given some thought as to your intentions. In particular:

  • List your assets. Make a rough calculation of the value of these. They make up what is called your estate.
  • Choose executors. You can have from one to four, but two or three is better.
  • Choose guardians if you have infant children.
  • Decide who you want to benefit and how much you want them to receive.
  • You might want to leave a particular treasured item or a fixed sum of money no matter how large or small to a particular person or organisation, e.g. to grandchildren, a friend or a charity.
  • Decide who is to receive what is left over (which is commonly known as the Residue). If it is to go to more than one person e.g. your children this can either be equally or in different shares.
  • You should consider a “gift over” – i.e. where a gift is to go if the chosen beneficiary should die before you.

To help you we have prepared a questionnaire, which covers much of the information we will need with some hints and reminders. If you haven’t received one from us, please ask.

Inheritance Tax Planning

Don’t pay the Tax Man too much

  • Depending on the size of your estate Inheritance Tax may be charged on the value of your assets.
  • There is a “Nil Rate Band” which is currently £325,000 on which no tax is paid. The remainder of the estate is taxed at 40% of its value over the Nil Rate Band. Therefore if your estate exceeds £325,000 consult us to discuss if any tax saving measures are possible.
  • Please also see our guide on the Inheritance Tax Charge.

Can my Will be challenged?

A court can be asked by relatives or anyone who is dependent upon you to make provision for them out of your estate if you have not adequately provided for them.

However, a Will cannot be challenged simply because someone does not agree with it.

For advice on making Wills and any other subjects, please contact the Private Client Department of Thomson & Bancks LLP using the details over the page, and we will be happy to help you.

Can I change my Will?

Yes, you can cancel or change your Will at any time.

  • You should check your Will every few years to ensure it is still what you want and to update it if necessary.
  • Short amendments can be made by way of a Codicil; like a PS to a letter!
  • A Will only takes effect on death so during your lifetime people named in your Will have no interest in your assets and you remain free to dispose of them as you wish.
  • If an asset specifically given away in your Will is disposed of during your lifetime the gift in your Will will normally fail.
  • If you left an asset to someone who dies before you that gift also normally fails.

And revocation?

Your Will is automatically revoked if you:

  • make a new Will.
  • destroy your Will.
  • get married.

Remember also that divorce cancels a gift to that former spouse – which brings us on to:

Wills, Divorce and Marriage Breakdown

It is essential if you are thinking about or have started divorce or separation proceedings that you also consider making or altering your Will.

Until you are finally divorced and the decree absolute is obtained (which can take many months) your husband, wife or civil partner may benefit under the terms of your existing Will or the intestacy rules.

It seems a nonsense if you are going through an acrimonious divorce and arguing over ownership of the lounge suite, only to die half way through and to have everything pass to your spouse anyway because you did nothing about making a Will!

It is also worth considering changing your Will or at least discussing your options with us if your son, daughter or other beneficiary of your Will is going through a divorce. If not done it could mean your untimely death puts more assets in the hands of your soon to be ex-son or daughter in law!

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