WHAT IS A 'LAST WILL & TESTAMENT'?
A Last Will and Testament is a legally binding document which sets out how a person wishes to distribute their estate (property, possessions, money and investments, etc) after their death. It may also give details of executors, heirs and guardians for minor children.
WHY MAKE A WILL? - DYING INTESTATE
If you wish to decide which people, organisations or charities receive possessions, money or assets after your death, it is essential that you have a valid Will.
When a person dies intestate (without a valid Will), their assets and possessions will be distributed in accordance with the law. This in effect means that the relatives of the person who has died will inherit their estate. For further details, view the Government information on who inherits when someone dies without a Will.
So, if a couple are cohabiting and are not married or in a civil partnership, the surviving partner does not automatically inherit the estate of the person who has died. Assets that are held or owned jointly will usually pass to the partner, but payouts from pensions and life insurance policies may not unless the person is named on the policy as the recipient. It may be possible for a 'common-law' spouse to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975 but there is very specific criteria for doing this. Many cohabiting couples do not realise how little legal protection they have under current law.
The process of sorting out the estate of someone who dies without a Will may take months, or even years, to resolve and during this time no-one will be able to access their assets. If they have dependents or a business, this may cause serious problems and distress. Also, it may mean that those inheriting the estate get a hefty Inheritance Tax bill. Making and regularly updating your Will can save those you leave behind a great deal of anxiety and distress.
INFORMATION YOU NEED TO MAKE A WILL
Here is some of the information you will need when making a Will. Gather as much of it as possible together before you visit the person or organisation that is going to prepare the Will for you.
Your personal details and those of your spouse or partner (if you have one)
- full name
- date of birth
- telephone numbers
- marital status (single, divorced, engaged, remarried, married, widowed, separated)
- is there an existing Will?
Details of children
- date of birth
- their relationship to you (ie step, from a previous relationship)
- names of guardians for children under 18 years old
Value your estate
- Assets: property, savings, insurance, pension funds, shares & investments, money in banks and building societies, belongings (home contents, cars, jewellery, art, etc)
- Debts: mortgage, bank overdraft, loans, equity release, credit cards, credit or hire purchase agreements
Decide how you want to divide and distribute your estate
Will all of your estate pass to a partner, relative or friend? Are there possessions or gifts that you would like to give to particular people or causes?
- Bequests: make a list of items (ornaments, jewellery, etc) and the names of the individuals and organisation/charities to whom you wish to leave them.
- Pecuniary (money) bequests: make a list of the names and addresses of individuals, organisations and charities with the amount of money that you wish to leave them.
- Residuary bequests (from the remainder of your estate): make a list of the names and addresses of individuals, organisations and charities that you would like to benefit from the remainder of your estate.
Choose your executors
Executors are responsible for distributing your estate after your death. They can be relatives, trusted friends or acquaintances, or professionals such as a solicitor (a professional will usually charge for this service).
WRITING YOUR WILL
Your Will must be made voluntarily and without pressure from anyone else. You must have mental capacity to make it and understand its effect.
The beginning of the Will should state that it revokes all others and previous Wills should be destroyed.
Anyone can write a Will, however in all but the most straightforward cases, it is advisable to get someone legally qualified to do it for you.
Here are some of the organisations that can help:
- Lawyers: it is often prudent to get advice from a lawyer who specialises in Wills and probate. Check they are a member of the relevant professional body, such as the Solicitors Regulation Authority or the Law Society.
- Professional Will writers: these are not qualified solicitors and may not be regulated, so only use Will writers that are members of the Institute of Professional Will Writer.
- On-line services: these can be either with the help of a solicitor or DIY. They should be used with caution. Make sure you read and understand the terms and conditions, particularly if you are appointing them as executors. Check for hidden charges and be sure you know exactly what costs will be incurred. If you make a DIY Will you will not be covered if there are mistakes, etc.
- Banks: some banks offer this service.
- Charities: some charities offer a free Will making service in order to encourage charitable legacies, although there is no obligation to do this. Look out for initiatives such as Free Wills Month.
- Other organisations: Some Trades Unions and Insurance Companies offer a Will writing service.
- Do it yourself: you can write your own Will, but it is essential to write and sign it correctly, check carefully for mistakes (mis-spellings of names, etc) to ensure that it is valid. It is sensible to take proper advice.
SIGNING & VALIDATING YOUR WILL
Under most circumstances, a Will must be signed by you in the presence of two independent witnesses. The witnesses must also sign it in your presence. They should not be beneficiaries, their spouses or civil partners, or executors of the Will.
Or, if you are physically unable to sign the Will, it can be signed on your behalf as long as you have requested it, have mental capacity and are in the room when it is signed. There should be a clause stating that you understand the contents of the Will.
In light of the COVID pandemic, the Ministry of Justice has granted a concession during lockdown allowing Wills to be signed using video technology. The new rules apply from January 31st 2020 and will remain in force until January 2022. There are strict criteria for this method of validation and it should only be used as a last resort if the person making the Will is shielding and can't meet others outside their household. It is essential to get professional advice to make sure all the rules are fully complied with to ensure that the Will is valid.
STORING YOUR WILL
Store it safely and let your executors or someone close to you know where it is.
A solicitor, bank or Probate Service can store your Will, or you can keep it somewhere safe at home. To avoid doubts about missing parts or amendments, the Will should be completely unmarked by paperclips or staples, so do not attach any documents to the Will.
REVIEWING & UPDATING YOUR WILL
Review your Will regularly every five years or so and after any major changes in your life (moving house, changes in family circumstances, etc). For minor changes, a supplement (codicil) can be added to the existing Will. This must be signed and witnessed as before (it does not have to be the same witnesses). For substantial changes, make a new Will and destroy the old one. Never make alterations on the original document.
Note: a Last Will & Testament is a public document, a copy of which can usually be obtained from the government Probate Registry. If you want to leave personal or sensitive instructions or information (such as why you have distributed your assets in a particular way, or perhaps left someone out of your Will), it might be better to put it in a Letter of Funeral Wishes, which is largely seen only by those to whom it is addressed.
LEGACY WILL/ETHICAL WILL
These are documents that pass on to the next generation outlining your values, life lessons, hopes and dreams for the future.
To find professional organisations that can help you prepare a Will, please go to Wills, Trusts & Estate Planners in the Providers section of our website.
WHY HAVE A TRUST?
A trust enables the control and management of beneficiaries who are children.
With a trust, it is possible to set conditions over the inheritance. This might be dictating the age at which a child inherits or, if inheriting everything at once is not deemed appropriate, the period over which the inheritance is received. It might also be by stipulating how this money should be used (for example, a property or education).
Trusts can also offer protection against inheritance tax.
INHERITANCE TAX (IHT) IN RELATION TO TRUSTS
Trusts can help minimise the amount of tax payable by keeping certain parts of your estate outside the taxable amount.
The laws surrounding inheritance tax are complex and it is important to take professional advice.
For further details, see the Government information on trusts and inheritance tax.
To find local companies that can help you set up a trust, please go to Wills, Trusts & Estate Planners in the Providers.
WHAT IS MY ESTATE?
Your estate is everything you own, including property, shares, cash, etc.
WHY MAKE A PLAN?
Making a plan allows you to set down in writing what you want to happen with your estate after your death. It can give you and your loved ones peace of mind to know that your wishes are clear and that they will be honoured.
Planning in advance will enable you to understand and mitigate any inheritance tax that is due on your estate.
The plan may contain other details such as:
- where your Will is kept
- where your Letter of Wishes or Letter of Funeral Wishes is kept (if you have one)
- a full inventory of everything you own and any outstanding debts
- gifts you have made in the past 7 years
To find local companies that can help you prepare an Estate Plan, please go to Wills, Trusts & Estate Planners in the Providers section.