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Ten top tips to consider when making a will

Ten top tips to consider to help you better understand the decisions you will have to make as you go through the process of putting a will in place.

Making a will is a key part of your estate planning to make sure that your wishes are recorded and then carried out after your death.

Here are ‘ten top tips’ for you to consider, to help you better understand the decisions you will have to make as you go through the process of putting a will in place.

Seek independent legal advice at an early stage from a good solicitor

The benefit of obtaining good professional advice from the outset is critical to effective will and estate planning. Having a professionally drafted will mitigates the risk of the will being deemed invalid for uncertainty and/or being challenged for any other reason. Being able to make an informed decision about the type of will structure that is suitable for you and your circumstances will ensure that your wishes are carried out.

Think about who you would like to appoint as your executors and trustees

These are the people who will have legal authority and responsibility for carrying out your wishes. If your assets are at all complicated, this can be quite an onerous task covering a whole range of matters. You can appoint anyone you like as your executors and trustees and this can include family members and beneficiaries you have named in your will but in certain circumstances it may be sensible to consider appointing someone who is independent.

The people you appoint as your executors will usually also be appointed as trustees of any trusts which might arise under your will. However, separate people can be appointed to perform these roles if you wish. We would recommend that you seek the agreement of the people you are proposing to appoint as your executors and trustees to ensure they are happy to perform such a role.

Executors and trustees are entitled to claim a refund of their ‘out of pocket’ expenses from your estate but family and friends cannot be paid a “salary” for acting for you. Non-professional executors will often instruct solicitors to help them administer your estate and pay a fee from the estate for that help. If you appoint professional executors, such as solicitors, then they will charge a fee for administrating your estate.

Cremation or burial wishes

Although strictly not legally binding, it is very helpful for your relatives and executors to know your wishes and for these to be recorded in your will so as to save anxiety about whether or not the right action has been taken.

Consider the types of gifts you can make in your will

  • Gifts of money

You need to list those beneficiaries to whom you wish to leave fixed sums of money and also the age you wish them to inherit if they are currently under-age.

  • Gifts of specific items (e.g. jewellery, furniture, cars etc.)

These types of gifts can be recorded in the will, though if there are a large number of items you would like to leave to various people or your wishes are likely to change, it is often convenient to set these out in a separate letter. This, together with those items, can be given to your executors, on the understanding that they should be distributed in accordance with the letter. This provides considerable flexibility as you can change your wishes in the letter without altering your will.

  • Giving a life interest

You may wish to make a gift so that a particular person receives the use of income or property for his/her life, after which the property then passes to another person. This enables you to have an element of control over the gift and provide for more than one beneficiary with the same asset.

However, there can be substantial administrative expenses in carrying out wishes of this kind as your trustees may need to prepare annual accounts and tax returns. Generally, we would only recommend creating a life interest where there is a real need such as protecting a beneficiary from receiving a gift outright or the value of the property involved is fairly substantial. 

  • Gifts of foreign property

If you own any property that is not in England and Wales, you may need to get specific legal (and tax) advice in the country where the property is situated. You must be careful that wills made in different places do not conflict with each other and are not inconsistent with the laws of the country concerned.

  • Dealing with the remainder of your property

It is important that your will should set out who is to receive the assets which have not otherwise been dealt with in your will. When thinking about who should benefit from the remainder of your estate, please remember that it cannot be predicted in what order people will die. Accordingly, you might want to make provision for a beneficiary’s family should that beneficiary die before you.

If you are leaving a share of your estate to children, think about when you would like them to receive what they are due. For example, when they are 18, 21 or 25 or some other age? Alternatively, you could leave this to when your trustees decide that the children are mature enough?

If all else fails – you may want to include what happens in a very unlikely “disaster scenario” where you and your main beneficiaries all die at the same time.

Provision for your children

Should you (and your spouse) both die whilst children are under the age of 18, it is helpful to make special arrangements for their benefit. There are two aspects; the welfare of the children and the provision of funds to help bring them up.

In relation to welfare, guardians can be appointed. Any parent who has parental responsibility for their child may appoint one or more individuals to be the child’s guardian(s). If an unmarried father is named on the birth certificate, he will have parental responsibility. You do not automatically have parental responsibility for step-children.

The appointment must be made in writing and need not be by will but it is often most appropriate to include it as a term of your will. In the absence of such a provision, a court order will be needed to appoint guardians for children.

Your appointment would generally take effect on your death unless someone else with parental responsibility survives you. In this instance, your appointment would generally only take effect on the death of the last to die.

If more than one guardian is appointed, both appointees will share parental responsibility. Clearly, it is preferable for those with parental responsibility to appoint the same people as guardians for their children. Parents often feel that members of the family or friends who are already well known to, and liked by, the children are the most appropriate choice. In every case, it is important that the candidates are consulted in advance to ensure that they are willing to act and also that sensible provision is made for the cost of your children’s upbringing.

One common financial arrangement is to appoint the guardians (perhaps together with a solicitor) as the trustees of a trust fund set up by your will for your children and to give the trustees suitable powers to draw on the capital and income of this fund to meet the needs and expenses of your children.

Other points to note

Jointly owned assets

If you own assets jointly with another person, how your share will be dealt with when you die will depend on whether you are “joint tenants” or “tenants in common”. If you are tenants in common, your share will pass under your will. If you are joint tenants, your share will pass to the other owner on your death, regardless of what your will says. Most joint bank and building society accounts are held as joint tenants.

Life insurance and pensions

It is possible to arrange for any life insurance you have or the death benefit from your pension to pass outside your will to people you nominate. This is known as nominating the benefit or putting it “in trust”. This is beneficial from a tax perspective but you need to be careful that you do not exclude yourself from benefitting completing if your life policy includes critical illness cover.

Effect of marriage and divorce on a will

Should you marry or re-marry after making your will this automatically revokes or cancels the will unless your will is drafted to refer specifically to the marriage that is to take place. A simple document can be executed to revive your will or a new will can be prepared to provide for your spouse. On divorce, any gifts to your former spouse are revoked unless you have said otherwise in your will.

Signing your will

There is considerable responsibility on those who draft wills to ensure that they are properly signed. Ideally, you would see your solicitor who would supervise the signing of the documents to ensure that all is in order.

Accountants and financial advisors

If you have an accountant and/or a financial advisor, it is prudent for your solicitor to liaise with them so that the management of the affairs is integrated and each advisor is working together for you rather than doing his/her own thing.

Safekeeping of your will

You should inform your executors where the original of your will is kept. Naturally, this needs to be a safe place. Solicitors will normally store your original will for no additional charge and supply you with copies to keep at home.

Reviewing your will

You should review your will each time your family or financial circumstances change. You cannot just write on your existing will to make amendments. You should in any event look to review your will at least very three years or so, just so that we can check whether any changes in the law in that time will have affected your arrangements. 

The consequences of not making a will:

  • Your assets will pass in accordance with the law, which does not necessarily pass your assets to those whom you consider closest to you
  • A cohabiting partner will not automatically benefit directly from your estate
  • Any person who is are not directly related to you will not inherit from your estate, including step-children
  • If you are separated but not divorced, your estranged spouse could still inherit and be responsible for administering your estate
  • You will have no say in who will look after your children if they are under 18 when you die
  • You will have no control over the age at which your beneficiaries will inherit
  • There could be increased cost and delay in administering your estate
  • There could be tax to pay which could have been avoided

For more information on making a will, please speak to our specialist will solicitors

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