What is a Will?
A Will, sometimes called a “Last Will and Testament”, is an important legal document which sets down what you would like to happen to your property after you die. You can also nominate a legal guardian to care for any of your children who are under the age of 18. You will appoint one or more executors. These are people who make sure that the instructions in your will are carried out. A Will is a formally prepared document which is signed in the presence of witnesses.
Why should I make a Will?
Making a Will ensures that your estate (comprised of your personal possessions, savings, investments, your home, etc.) is shared according to your wishes after you die.
Everyone should have a Will, but it becomes even more important if you have children, own a business, own property or if you have savings, investments, or insurance policies.
What does my Will cover?
A Will covers all of your assets at the time of your death. An “asset” is something you own, such as cash, land or other personal possessions. You can dispose of all of your assets by Will, except for the following:
- Assets owned as a “Joint Tenant”. This means that the asset will pass to the surviving joint owner(s) when you die. This usually applies to your house or any joint bank accounts you and your partner may have.
- Nominated assets, where you have made a binding direction that the asset should pass to a named person after your death. Certain types of asset allow you to nominate a person without making a Will, although this is now rare.
- If you hold a private pension, you should contact the scheme to make enquiries as to how any lump sum payment or ongoing payments will be dealt with upon your death and ensure this is accordance with your wishes.
- Some life insurance policies are written in trust and will not normally form part of a person’s estate, meaning it is not liable for inheritance tax.
A person’s estate can also contain “digital” assets. Although these are not tangible property in the conventional sense, they nonetheless have value and in some cases can be the most valuable asset in a person’s estate. It is important to seek legal advice about passing on any of the following by Will:
- Web Domain names;
- Digital photographs and videos;
- Social Media Accounts;
- iTunes Accounts;
- Online Gambling accounts;
- Digital Store Cards.
(this list is not exhaustive and is intended as a representative sample only)
What happens if I die without making a Will?
Dying without a will is known as dying “intestate”. The effect is that you have no control over who inherits from you. There are legal rules which determine how your estate is to be distributed if there is no Will. These rules are arbitrarily applied without taking your wishes into account. This means that someone could receive a part or the whole of your estate who you would not wish to benefit. In addition, your loved ones may find it more stressful, time consuming and costly to deal with your estate.
If you are unmarried but living with a partner, that person will not inherit any part of your estate unless provision has been made for that person in your Will. It does not matter how long you have been in a relationship with that person. There is no such thing as a “common law wife” or “common law husband”.
A Will is the only way of making sure that your estate is shared according to your wishes after you die.
Is it expensive to make a Will?
The answer to this is generally no. The cost is ultimately dependent on the complexity of the Will, which in turn is determined by the amounts and types of property which are to be dealt with by the Will.
It is inadvisable to allow a fear of costs to deter you from preparing a Will. “DIY” or “homemade” Wills may appear an attractive alternative to using a solicitor from a price perspective. However if errors are made in drafting or executing the Will, the results can be disastrous.
Poorly drafted and incorrectly executed Wills can lead to drawn out probate proceedings which can cost families tens of thousands of pounds in legal fees. Significant portions of the estate can be consumed by these fees. By contrast, a professionally drawn Will in most cases will not cost more than a couple of hundred pounds.
Please contact our specialist team for a free initial consultation, during which an indication of the likely costs will be provided to you.
Am I too young to consider making a Will?
Anyone over the age of 18 who lives in England, Wales and Northern Ireland can make a Will. The main exception to this rule is members of the Armed Forces on active duty. They are able to make a Will when they are 17.
Many young people think there is no point in making a Will because they have nothing to leave. However it is worth bearing in mind that your circumstances can change quickly. For example, you may suddenly inherit a substantial gift from an elderly relative. If you have a Will in place, this covers what you have at the date of your death and will ensure that your estate passes according to your wishes, notwithstanding the fact that your estate may have grown in size and value since the time of making your Will.
Can my spouse/civil partner and I make separate Wills?
Yes, absolutely. You have the option to make a Mirror Will with your spouse or civil partner. This option is most appropriate for couples, whether married, civil partners or living together, who have very similar wishes about how their estates should be distributed. The two Wills will be a mirror image of each other.
For cases where co-habitees have very different wishes about how their property should be distributed, single Wills would be more suitable.
Please contact us for a free initial consultation. Our specialists will advise you on which of the two options would be best for you.
Can I prevent my estate from being spent on care and nursing home fees during my lifetime?
The law surrounding this is complex and ever-changing. However there is currently a number of ways in which you can minimise depletion of your assets to protect the interests of your loved ones as far as possible.
A number of companies have emerged that sell “property trusts” or “asset protection trusts”. They claim to be able to protect their clients’ homes and other assets from care fees, taxes and other things. Unfortunately these claims are overblown and the circumstances in which these Trusts work as intended are quite rare. Almost all such companies are unregulated, so clients have nowhere to turn if things go wrong.
Please contact us today for honest, bespoke advice as to how best to manage your estate to preserve its value as far as possible.
Can my Will be challenged after my death?
Unfortunately there is no way to prevent a challenge to your Will after you have died. However a properly made Will is not easily set aside. Challenging a Will is difficult, expensive and time-consuming. Wills can only be challenged in court by certain people and where there is a valid legal question about the Will or the process by which it was created.
Challenges most commonly arise in cases where a person has chosen to cut someone out of their Will. In English law the starting position is that you are allowed the freedom to leave your estate to whomever you choose. However individuals have the right to make a claim if they have either not benefited from a Will or feel that inadequate provision has been made for them under the terms of that Will. Recent case law raises questions as to whether we truly do have the freedom to leave our estates to whomever we choose.
In deciding such cases a Court will look at a person’s reasons, or lack thereof, for leaving someone out of their Will who had a reasonable expectation that they would inherit. The Court will consider whether those reasons are mistaken or unreasonable, as well as considering the needs of the person making the claim.
Having said that, there are steps which can be taken which will deter people from making a claim against your estate. Please contact us for advice today.
What happens if my beneficiaries die before me?
Most Wills, if properly drafted, include wording which takes the death of beneficiaries into account and will often name someone else to take their place. However in these unfortunate circumstances it is advisable that you review your Will because it may be that the Will needs to be rewritten.
For help and advice during this difficult time, please do not hesitate to contact our specialist team.
Who can I ask to be the witnesses to the Will?
Anyone who is over the age of 18, not a member of your family and who does not have an interest in the property being disposed of in the Will can act as a witness. The witnesses do not commit themselves to anything by adding their details to the Will – All they do is confirm that the Will was signed by you in their presence.
If you have instructed a solicitor to draft your Will, that solicitor plus another member of their team can act as witnesses. Please contact us to find out more.
I’m going through a divorce and my ex-wife/husband is named as a beneficiary in my Will. Are they automatically written out of the Will because we are in the process of divorcing?
No. All of the gifts in their favour will still pass to them by operation of your Will until the divorce is finalised. Divorce proceedings can be very lengthy. If you wish to make sure they do not inherit if you were to die while the divorce is still ongoing, it is essential that you act quickly in revoking your Will and making a further Will which deals with your assets according to your wishes.
Once the divorce has been finalised, your former spouse will be treated has having died for the purpose of an existing Will, so they can neither inherit nor act as an executor.
Please contact us for further advice.
I have a disabled child or child with learning difficulties. How do I provide for their care after I have died?
This can be addressed in your Will. Our solicitors have experience in Court of Protection work and Trusts and are well placed to help families with these concerns.
One option would be to create a Disabled Person’s Trust. This can be done either in your Will or during your lifetime. One advantage of doing this is that such trusts may attract various forms of tax relief. Please contact us for more information.
Can I make a Will in England and Wales if I own overseas property?
If you own land, property or any other asset in a foreign country, it is generally advisable to have a Will prepared under the law of that country. Foreign inheritance laws are complex and can be quite different from English law. For example, France and Spain have inheritance laws which provide that a certain percentage of your estate is required to pass to certain beneficiaries. These rules cannot be set aside by operation of a person’s Will.
It is strongly recommended that appropriate advice regarding the disposal of property is obtained in the relevant country before making a separate Will in accordance with the local law.
If no Will is in place in the relevant country, this can make disposal of the assets in that country difficult, time consuming and costly.
Do I need to think of every possible scenario and try to deal with it when making my Will?
This is not necessary. A Will should reflect your circumstances as they currently stand, rather than trying to guess what they might be in the future. It is advisable to review your Will every five years or so and make sure it is up to date and appropriate for your circumstances.
The following changes in circumstances may prompt you to review your Will:
- Getting married, entering into a civil partnership, or simply moving in with a partner. Additionally consider reviewing your will following separation, divorce, dissolution of a civil partnership or the death of your partner.
- Becoming a parent, grandparent or if children have entered the family through a new relationship.
- One of the beneficiaries or someone named in your Will dies.
- The will no longer accurately reflects your wishes.