Writing a Will is one of those things which few of us want to think about, but having a Will can be incredibly reassuring. It allows you to express what your wishes are, and to make provision for those who you support, even after you have gone.
What is a Will?
A Will is a legal document. It gives a person the opportunity to confirm how they wish for their estate to be dealt with after death.
In legal terms, an estate is the remaining sum of everything a person owns plus entitlements (money available to that person, such as in a pension fund), after any debts and liabilities are settled.
People (or organisations) who are named in a Will to receive a share of the estate are known as beneficiaries.
Who can make a Will?
A Will can be made by any person over the age of 18 who has the ability (sometimes known as testamentary capacity) to understand:
- What a Will is and what it does.
- The extent of their estate that they are passing on to their beneficiaries.
- Understand and appreciate the moral and/or legal obligations that they may have to certain people.
- Have no disorder of the mind that alters their understanding of any of the above.
Why is writing a Will important?
The preparation of a Will helps to make clear what your wishes are. For example, this might include your intentions regarding financial support that you provide to other people, or money which is to be left to a charity.
Under a Will, you can make various types of gifts:
- A specific legacy – a gift of a specific property, asset or personal belongings such as your car or jewellery.
- A set sum of money e.g. £1,000. This is sometimes referred to as a pecuniary, or monetary legacy.
- A share of what is left of the estate once any debts and taxes have been settled. This is known as the residuary estate. For example “50% of my residuary estate” will mean 50% of all of the assets that pass under a person’s Will, after the payment of any legacies, debts and taxes.
In addition to making straightforward gifts (often referred to as absolute gifts), a Will also enables a person to:
- Express their funeral wishes (although at present these are not legally binding).
- Appoint guardians for minor children.
- Appoint Executors – the people who will be responsible for giving effect to the wishes set out in the Will, paying any taxes (including Inheritance Tax, Capital Gains Tax and Income Tax) and ensuring that the estate is administered in accordance with the law.
- Create Trusts which can be used, for example, to safeguard assets for children or grandchildren, or give your spouse or partner the right to live in a property after your death.
- Appoint Trustees – the people who will administer any ongoing trusts in the Will.
Should these be re-ordered into priority? Executors, guardians, trustees, funerals?
How do I write a Will?
There are different ways in which you may prepare a Will. There are templates available online, or legal templates from shops such as WH Smith to help you write a Will. You may decide to use a Will writing service, either online or in person, or you might use a solicitor to help you.
Whilst a solicitor isn’t required to write a Will, consider taking advice to ensure the language used in the Will is clear enough to be interpreted as you meant it to be.
Things to consider when writing a Will.
1. Estate planning for Will writing
It might be helpful to prepare a list of everything that makes up your estate. An estate plan is not just everything you own, it is everything you owe.
This might include
- Joint property or assets (which will usually pass to the surviving owner, such as a husband, wife, child, or sibling)
- Assets held in trust, such as life insurance policies or pension benefits
- Physical items such as cars and jewellery
- Bonds, shares, bank account details and ISAs
- Debts and liabilities
2. Provision for financial dependents in your Will
If there are people who are financially dependent that you would like to continue to support, consider what their future needs might be. For example, care fees for a surviving spouse.
3. Naming beneficiaries in a Will
When leaving an estate to more than beneficiary, explain how it is to be shared amongst them. This might include allocating specific sums of money, a possession, or a percentage of the estate.
4. Unexpected problems
Sadly even the best made plans are susceptible to the unexpected, so consider the possibility that a beneficiary might die before the Will is required.
5. Naming an executor in a Will
The executors of a Will are is the people responsible for paying any outstanding debts, and for distributing the estate amongst the beneficiaries.
Ideally, it is recommended to choose at least two (and up to four) executors. They are all required to act jointly in any decision which might influence who is chosen. It can be someone who is also a beneficiary, though they must be at least 18 years of age.
Executing a Will can be quite complicated, even if the estate is fairly straightforward, so consider who is most able to accomplish this task.
6. Expressing wishes in a Will
To make sure that the Will is correctly understood, the words used when writing it should be chosen carefully. This helps to ensure that the wishes set out within it are clear, without ambiguity.
7. Inheritance Tax
Inheritance tax is the tax applied to an estate after the estate holder dies, before it is passed to the beneficiaries.
It is the job of the executor(s) to make sure any inheritance tax due is paid.
The rules around inheritance tax are complicated, though there are exemptions. Gov.UK has a helpsheet which explains what the limits and exemptions are: https://www.gov.uk/inheritance-tax. The Society of Later Life Advisers (SOLLA) also provides advice on this: https://societyoflaterlifeadvisers.co.uk/
Where should my Will be stored?
Put it in a safe place – either at home or with the bank/solicitor. There are also companies that store wills. Tell the executors where the Will is kept.
What makes a Will legal?
Once the Will is written, it must be signed and dated. Two witnesses must also sign and date it. The witnesses cannot be beneficiaries of the will.
A Will can be handwritten, and is still subject to the same requirements for signatures and witnesses.
Letter of Wishes
To accompany a Will, it is also possible to provide a Letter of Wishes. Though it is not legally binding, it can be used by the people administering an estate as a guide. For example, advice that might help the trustees to manage a Trust.
Whilst a Will can be made public as it goes through the legal processes, a Letter of Wishes remains confidential.
Dying intestate – What happens if I do not write a Will?
When a person dies without having prepared a Will, it is known as dying intestate. This means that the person who died has not expressed who benefits from their estate, and who is responsible for implementing this. Instead, there is a legal process which determines who is entitled to a share of the estate, and who may be appointed to administer the distribution of it.
Their estate will pass in accordance with the Intestacy Rules. The Intestacy Rules set out who will benefit in the event of a death and it is not uncommon for problems to arise when the Intestacy Rules are relied on.
A common issue with the Intestacy Rules is that unmarried partners, including a partner that co-habits, will not be entitled to receive any benefit from the estate. Also, step-children/step-grandchildren will not benefit – which can be an issue for couples who have children from previous relationships, particularly if their combined estate has passed to the survivor of them as the estate will only pass to the survivor’s children.
GOV.UK has a guide to help work out who is entitled in the event of intestacy: https://www.gov.uk/inherits-someone-dies-without-will
Sorting out the estate of someone who has died without a Will can take a lot longer than if they did have one. It is more difficult to uncover all of the assets held by the deceased person, and the additional court processes required means that less of the estate is left to distribute once the fees have been paid.
Because an executor has not been appointed by the deceased person, one will be appointed, known as an administrator.
The administrator (or personal representative) will usually be a close relative of the person who has died. Who the administrator is will be determined by a set order of priority which a solicitor can advise on.
The Money Advice Service has help sheets which explain what to do when someone dies without a Will:
What is probate?
Probate is the legal process which allows the executors (or administrators) to be able to sort out the estate, and must be applied for after a person dies.
Once granted, a Grant of Probate is used to demonstrate that the executors have permission to carry out their role. For example, the bank where the deceased person held a bank account will require evidence of probate before transferring any funds under the direction of the executor.
If there is a Will, do I still need to do probate?
The Will is an expression of what the deceased person wishes to happen to their estate. Probate is the legal permission given by the courts to the executors to enact these wishes.
Is probate always needed to execute a Will?
There are exemptions to probate, such as a bank account where the account balance is a low amount. Whether or not probate is required to execute the Will, depends on the assets held by the estate.
Lawpack explains probate in more detail on their website: http://www.lawpack.co.uk/probate/articles/article7391.asp
Sources of Information
Find a solicitor – search under Wills and probate.