Making a Will

Making a Will FAQS

Below, we have answered some frequently asked questions concerning making a will

• Why do I need a Will?

  If you have assets of any kind (e.g. property, savings or investments) then you have an estate. Wills apply to everyone, wealthy or not, and if you put a Will in place then you can decide who you want your estate to pass to when you die (e.g. your spouse, children, other family members, friends, charities, etc.).

  Additionally, if you are in a relationship but are not married, or have not registered a civil partnership, your partner cannot inherit from your estate unless there a Will is in place.

• What happens if I die without a Will?

  If you die without having a valid Will in place, your estate will be inherited according to the intestacy rules. That means your estate will pass to your next of kin in accordance with the default statutory rules, which might not be what you want. Friends and charities, who you may want to receive part or all of your estate, will not receive anything. Dealing with intestacy can be complicated, time consuming and expensive.

  At Nelsons, we always advise that you make a Will so that your wishes are clear and legally valid. It may also prevent distress and arguments between the people you leave behind.

  If you make a Will you take control of your own affairs, by:

  • Choosing who will act as your executors and administer your estate
  • Choosing who will inherit and on what terms
  • Planning in a tax-efficient way for the benefit of your family
  • Appointing guardians for your children’s welfare
  • Making provision for a second family, if you have one
  • Making proper provision for any business interests you have
  • Including Trusts to provide flexible inheritance
  • Delaying your children’s inheritance beyond 18 years of age, if you feel this is necessary
  • Including rights of occupation in a house

• What assets can be included in a Will?

  Assets which can be left in a Will include:

  • Savings (e.g. money held in bank or building society accounts);
  • Property and land;
  • Investments (e.g. share holdings and bonds) and life policies; and
  • Personal effects (e.g. jewellery, furniture and cars).

  Your assets can be left in your Will either specifically to particular people (e.g. your jewellery to your daughter) or as part of your estate generally (e.g. everything you own to your two sons equally).

• What are the main issues to consider when making a Will?

  The main issues to consider are:

  • What’s the likely overall value of your estate? – this determines if your estate will be liable for Inheritance Tax.
  • Who would you like to appoint as executors to your Will?
  • Do you wish to be buried or cremated? You don’t have to state how you want your body to be disposed of but you can if you want to. We would recommend any detailed wishes regarding your funeral be communicated separately to your executors.
  • Do you want to leave gifts of money and specific items?
  • Do you want to make arrangements for children under the age of 18? To allow for both parents dying at the same time, you should specify one or more people to act as a guardian for your children. You should agree on details with the other parent, and make sure you have the agreement of the people you are appointing as guardians.
  • What do you want to do with your “residuary estate” (that’s everything left after any specific gifts)?
  • Do you want to provide for alternative residuary beneficiaries, if those you appoint die before you?

• Who is able to make a Will?

  In order to make a Will, you must at least be 18 years of age and have mental capacity. In some circumstances, there are exceptions to the minimum age to make a Will.

• What are executors?

  When you make a Will, you will need to consider who should act as your executor to administer your estate after you have died. The executor or executors are responsible for establishing what assets are due to your estate and what liabilities are owed by your estate.

  You can appoint as many executors as you want but a maximum of four will be authorised to act at any one time (in practice, four is the sensible maximum). In theory, one is enough but problems can arise if the executor dies or is ill.

  They will need to deal with any legal requirements (such as taking out a Grant of Probate) and sort out any tax due with HM Revenue & Customs.

  The executor or executors will need to collect the estate assets and pay out the estate liabilities and then distribute what remains in accordance with the terms of your Will.

• Who should my executors be?

  You may choose your executors to be the same people as your beneficiaries. There is no legal problem with this. But it may not always be appropriate, e.g. if they do not get on with each other or if you think they would find the task too difficult.

  In those circumstances, it may be sensible to appoint someone else to act, such as other family members or friends, or possibly professionals, such as your solicitors.

  It is common to appoint substitute executors in your Will, e.g. I appoint my husband as my executor but if he has died before me or is unwilling/unable to act, then I appoint my son and/or daughter to act instead.

  Your appointed executor or executors must be 18 years of age or above.

• Can I include assets (such as property) I own abroad in my Will?

  If you own assets abroad, such as a holiday home or a bank account in another country, then particular care needs to be taken when making your Will. The laws in those countries relating to inheritance, property ownership and tax may be very different to the laws in the UK and it is vital that you understand the impact of these.

  For example, many countries have a system of forced heirship, whereby certain family members are entitled to inherit certain percentages of your estate notwithstanding the terms of any Will you have in place.

  You can have a Will written to deal with all your worldwide assets but this may cause problems after your death. The Will may not be recognised by the country in question. The law of that country may not permit your assets to be inherited, as set out in your Will. The terms of your Will might cause delay and additional expense in administering your estate and/or an unintended or unnecessary tax bill.

  At Nelsons, our advice is usually that you have a foreign Will drawn up by a foreign lawyer in place to deal with your foreign property, and a UK Will written by a UK lawyer in place to deal with your estate here.

• Can a Will be made without a solicitor?

  There is no legal requirement for your Will to be drafted by a solicitor. However, homemade Wills created without the advice of a qualified solicitor can result in problems in the future.

  Such problems can include:

  • No-one being formally appointed within the document to deal with the administration of your estate. A professionally drafted Will will name executors to do this and will, where necessary, include default provisions to cover the event that a named executor is unable/unwilling to act.
  • The Will purports to make a gift of an item that cannot legally be distributed/passed on to a beneficiary (e.g. assets held in Trust in such a way that they cannot be gifted by you or jointly owned assets which will pass to the surviving owner regardless of what your Will says).
  • The Will does not effectively cover what should happen in the event of the death of a beneficiary. This is extremely common as the wording has to be precise. Often all or part of a Will can fail because of this, meaning that the intestacy rules apply to inheritance of the estate rather than your actual wishes.
  • The beneficiaries may not be accurately described, e.g. the Will may refer just to “children” when you would maybe want to include your step-children also.
  • Leaving gifts to loved ones can also be deemed to be ambiguous, e.g. “I give my necklace to my daughter”. This being an issue if there is more than one necklace and also if there is more than one daughter!
  • The Will does not deal with all of your estate, e.g. it might state who the house and a particular bank account is to pass to but fails to mention any other assets that may be held in your name at the date of your death. This could be because there were not any other assets at the date the Will was made but this changed later.
  • The Will causes Inheritance Tax to become payable in a way which could have been avoided.

  Additionally, disputes between executors or beneficiaries can arise if there is any room for interpretation because a Will has not been properly drafted.

  Getting advice from a qualified legal practitioner when drafting your Will can help avoid these issues. A solicitor will be able to examine your situation fully and inform you of any aspects that need attention.

• What information is needed to make a Will?

  Here is some of the information/details needed to make a Will:

  • The names and details of your beneficiaries, executors and, if required, guardians;
  • The details and value of your assets, personal possessions and liabilities (e.g. outstanding debts or financial commitments, including mortgages).
  • Details of your pensions and/or life insurance policies.
  • Your instructions – such as:
    • Who are to act as your executors
    • Any specific gifts of assets or money you would like to make
    • How you would like your estate to be distributed after you have died
    • What happens if a beneficiary dies before you do
    • Funeral arrangements
    • Arrangements for children under the age of 18

• Am I able to update my Will?

  If you want to keep an existing Will and just make minor changes to it, you can do this by making a Codicil.

  We advise that any Codicil is professionally drawn up as it may otherwise have unintended consequences. To be effective, a Codicil must be signed, witnessed and dated in the same way as a Will.

  The Codicil is subject to the same formal requirements as the Will. Common uses of a Codicil are:

  • To change an executor
  • To change a specific gift
  • To add a beneficiary
  • Other minor alterations

  If you want to make more fundamental changes to your Will, we recommend making a new Will.

  We also recommend making a new Will if you do not want people to know the specific changes in your Will, as your last Will and Codicils to it become public documents once Grant of Probate has been issued.

• How should I store my will?

  Here at Nelsons, we will store your Will safely for you free of charge, and we will remind you every five years of the need to review your Will. It is also important to let your executors and any other relevant close family members know where your Will is being stored.

• If my partner dies before I do, who will my assets pass to?

  If your partner dies before you and you do not have a Will in place, which specifies how your estate would be distributed, your estate will be inherited as follows, by:

  • Your children, or their descendants if any of them have died before you, but if none then
  • Your parents, but if none then
  • Your full brothers and sisters, or their descendants if any of them have died before you, but if none then
  • Your half brothers and sisters, or their descendants if any of them have died before you, but if none then
  • Your grandparents, but if none then
  • Your full uncles and aunts, or their descendants if any of them have died before you, but if none then
  • Your half uncles and aunts, or their descendants if any of them have died before you, but if none then
  • The Crown.

• Do I need to update my Will if I have more children?

  If you already have a Will and you have more children, then we recommend that you review your Will with your solicitor to check whether it needs to be updated. If you are updating your Will this could be done by making either a new Will or a Codicil.

  As mentioned above, we advise that any Codicil is professionally drafted as it may otherwise have unintended consequences. To be effective, a Codicil must be signed, witnessed and dated in the same way as a Will.

• Do I need to update my Will if I get married or remarry?

  If you make a Will and then marry (or remarry) or enter into a civil partnership, the starting point is that your Will is automatically revoked by that marriage or civil partnership.

  That is unless your Will specifically states that you intend to marry or enter into a civil partnership with a particular named person and that your Will is not to be cancelled by that marriage or civil partnership.

  At Nelsons, we generally advise our clients who are in a serious relationship but are not formally married or in a civil partnership, to consider including what we call a contemplation of marriage or civil partnership clause in their Will. This would avoid a person’s Will being cancelled if they were later to marry or enter into a civil partnership with the person named in the Will.

  For example, if a person is terminally ill, they may decide to marry their long-term partner. That marriage might then cancel their Will without them realising or perhaps having time to make a new Will.

• Do I need to update my Will if I divorce?

  If you divorce, your existing Will is not cancelled as it would be if you got married or entered into a civil partnership. However, a divorce does have the effect that your former spouse will no longer act as an executor nor inherit from your Will.

  Sometimes, a married couple may choose to judicially separate rather than divorce – e.g. for religious reasons. A judicial separation is a formal process, similar to a divorce, but doesn’t end the marriage. A judicial separation does not have any effect on a person’s Will.

  If you are unmarried and separate from your partner, that separation has no effect on your Will. Therefore, any Will you have made leaving your estate to your ex-partner will remain in force, unless and until you cancel or change it.

  Also, it is worthwhile bearing in mind that if you include say sons-in-law or daughters-in-law in your Will and your children divorce, your Will is not affected by that divorce. Therefore, any appointment of the in-laws as executors and any gifts to the in-laws will remain in force, unless and until you change your Will.

  You should therefore make sure you have your Will professionally reviewed in any of these circumstances.

• What happens if a beneficiary of my Will dies before I do?

  If a beneficiary dies before you, their estate will generally not receive the inheritance left to them by your Will as their benefit is said to have lapsed.

  Your Will may state who is to inherit in the event of that beneficiary having died before you.

  If your Will does not include a provision for this then what would have been inherited by the deceased beneficiary may pass into your residuary estate to be inherited by your residuary beneficiaries.

  You should review your Will with your solicitor to check what would happen if any of your beneficiaries were to predecease you.

• What happens if a beneficiary of my Will dies after I have but before they have inherited from my estate?

  If a beneficiary dies after you die but they hadn’t received their inheritance from your estate, the assets they were due to inherit will usually pass to their estate which is then distributed according to their Will or intestacy

  You can include in your Will a ‘survivorship clause’ which allows you to direct how your assets should be inherited if a beneficiary were to die before you or within a set time period after you. e.g. within 28 or 30 days after you.

  Furthermore, you can specify in your Will that a beneficiary should not receive their inheritance until they reach a certain age (e.g. 18, 21 or 25). If the beneficiary dies before reaching this age, their estate will not inherit from your Will.

• Who can witness the signing of a Will?

  As the testator, you have to sign your Will in the physical presence of two witnesses who then also have to sign the document themselves.

  Neither witness should be people who could benefit from your Will, nor be married to any such beneficiary. The witness must also be over the age of 18.

  An executor can witness you signing your Will but they must not also be a beneficiary.

• Can a Will be challenged or disputed?

  Yes, it can.

  Certain categories of people can make a claim against your estate under the Inheritance (Provision For Family And Dependants) Act 1975 if they do not inherit or consider they have not inherited enough.

  The following people may be able to make a claim against your estate:

  • Your spouse or civil partner or cohabitee
  • Your former spouse or civil partner who hasn’t remarried unless the divorce order prevents this
  • Your child or someone treated by you as a child of your family
  • Someone who was financially dependent on you

  The other common grounds for an inheritance dispute claim include:

  • Challenging your mental capacity (testamentary capacity) when you made the Will;
  • Challenging the execution or interpretation of your Will; and/or
  • There was another agreement made by you prior to your death, relating to the disposal of your estate.

• What is a Will Trust?

  A Trust is an arrangement whereby you have one set of people (the trustees) looking after assets (the Trust fund) that they hold on behalf of others (your beneficiaries).

  A Will Trust can be made and changed at any time during your lifetime by including it in your Will. It comes into effect on your death.

  The Will names the trustees and beneficiaries, and sets out what assets are to pass into the Trust fund and the terms upon which this is to be held.