1) What is a Will?
A Will is a document whereby a person over 18 appoints Executors to administer his estate after death, and directs the manner it is to be distributed to the beneficiaries he specifies.
2) What is a Mirror Will?
Mirror Wills are prepared for couples who want to make almost identical Wills, for example leaving everything to each other respectively and thereafter to their children, or where there are no children, to a named beneficiary or charity. They are separate legal documents with similar content that “mirror” each other. When writing Mirror Wills in this way it is important to add at least one extra Executor and beneficiary to each Will to safeguard the estate in the event that both should die together.
3) Why should I make a Will?
Appointing Guardians for their Children. If you have children under the age of 18 you need to appoint guardians for them in case a tragedy should occur. Failure to do so could result in a Court appointing someone who you would not chose.
Making provision for children from previous relationships, or providing an individual with a ‘right to occupy’ the family home.
Providing for complex family circumstances – such as ensuring disabled beneficiaries do not inherit outright resulting in them losing entitlement to means tested State benefits.
Leaving a Legacy to Charity. A Will provides the opportunity to benefit your favourite Charity, free of tax.
Looking after a family pet. If you aren’t around your Will can help ensure that your much loved pet will be looked after.
Protecting their Wealth – making sure their assets pass where they want, when they want and how they want – such as making provisions for children at a specific age when they are old enough to manage rather than waste their money, or protect assets from potential 3rd parties – maybe their surviving spouse’s next husband/wife, or care home fees.
4) What happens if I die without a Will?
Firstly, if your estate is worth more than £5,000 then your next of kin must apply to the Courts for the power to deal with your estate – they must apply for ‘Letters of Administration’, which can take months and in some cases years to sort out, meaning your family suffering financially for a considerable amount of time. If you had a Will then your Executors would apply to the Probate Registry office for a ‘Grant of Probate’.
Secondly, when there is no Will, contrary to popular opinion, your estate will not necessarily pass to your spouse or partner after your death. The Government appointed ‘Rules of Intestacy’ state who should get what amount of your estate, depending on their relationship to you, and the total net value of your estate. Click here for the Fact Sheet
An unmarried partner will be entitled to nothing, and even a spouse may not receive sufficient to maintain their current lifestyle.
5) Can I make my own Will?
Yes you can, but there are significant risks in doing so. Unfortunately any errors made in a Will won’t be discovered until the Will is needed (i.e. after your death), so you will have no chance to correct the mistakes. This could mean emotional upset and financial loss for your family. It is perfectly fine to write your own Will if you have the skills to do so.
6) What about my Bank – they offer a Free / Cheap Will Service?
Ask yourself WHY your Bank would give you a free or cheap Will…. is it because they are rewarding you for being a valued customer…? NO, it is because they appoint themselves as your Executors, giving them the absolute right to charge vast fees of generally between 3-6% of the value of your estate for their efforts and then another 5% when your spouse dies!
7) What is an Executor?
Executors are responsible for administering your Estate, and putting it through Probate – the legal procedure to establish that a Will is valid, the executors have the authority to carry out the terms of the will your estate in accordance with your instructions, and that your estate has been valued correctly for tax purposes).
They will arrange your Funeral, collect in all your assets, pay all your debts including any inheritance tax, deal with any specific gifts and legacies that you have left, and then distribute the remainder – your ‘Residuary Estate’ – in accordance with your Will. It is an onerous and responsible task and should not be taken on lightly.
If you appoint family or friends, they will not be paid for their efforts, but will be able to reclaim any expenses incurred by them in the administration of your estate, including Probate fees, as until the Grant of Probate is granted, all your assets are frozen.
If you appoint a ‘Professional’ Executor – such as a Solicitor or your Bank, they are absolutely entitled to act and charge for their services (see 9 above), and their fees will come out of your estate.
8) Who should I consider as possible Executors?
Your appointed Executors do not have to act, and only those who sign the ‘Oath’ will be allowed to. You must appoint people you absolutely trust to carry out your wishes, and due to the nature of the role, they should preferable live fairly locally to you, and have sufficient spare time to carry out the duties involved.
Beneficiaries can be Executors, and unless there is good reason not to, you should always appoint your surviving spouse/partner. You should each appoint at least 1 other person (in case you both die together), and it is advisable to appoint your adult children if possible. If there is no partner or child willing to act then the next suitable person would be a relative or trusted friend.
If you are in a situation where you have nobody else to act then you can appoint a solicitor or a Trust Company to be your Executor, but I would otherwise advise NOT to appoint a professional (or to only appoint them in a ‘Reserve’ capacity), as your Will can enable your appointed Executors to appoint one of their choice at the time; if they need assistance, or do not wish to act. A large part of the Executor’s role is writing letters to organisations holding your assets – eg banks, insurance providers, investment companies etc – and your beneficiaries may begrudge your estate paying hundreds of pounds an hour to a Solicitor simply to write letters!
9) What are Trustees?
Trustees are the people appointed in your Will to be responsible for making the decisions that maintain the estate whilst it is held on trust, before it is given to the beneficiaries, for example; until a child is old enough to inherit; or where somebody has been given a ‘right to occupy’ property, or an ‘interest in possession’ during their lifetime. Executors and Trustees are usually the same people, however if your Executors are all beneficiaries of the Trust it is important to appoint an additional ‘Independent’ Trustee. You may also wish to appoint separate Trustees to manage any Business you own at the time of your death.
10) Do I need to appoint Guardians for my Children?
If you have any children under the age of 18, your Will is the only place you can nominate Guardians for them so it is very important to do so. If both parents die without appointing Guardians, your children become ‘Wards of Court’ and Social Services and the Courts will decide where they should live.
If you are separated or divorced and the other parent has parental responsibility, then the appointment for a Testamentary Guardian will not come into effect until the surviving parent dies.
Ideal choices might be your parents if they’re able to cope with your young family, or your siblings or close friends, but it is important to seek the Guardians consent before you consider appointing them, as they do not have to act when required.
The Guardians should be acceptable to both sides of the family, and to the children. The Guardian is responsible for ensuring that the child is properly cared for, but does not actually have to physically look after the child, although normally the child / children will go to live with them, so it is unwise to appoint Joint Guardians living separately – e.g. both sets of grandparents jointly.
It is a good idea to appoint Secondary Guardians in case at the time they are required your Primary choice is unable to act, and if your Guardians are resident overseas you may need to consider a ‘Temporary Guardian’ until they arrive.
11) Who can automatically become a Guardian?
Only the birth/adoptive parents of the child or children will have ‘parental responsibility’, unless by order of a Court. In cases where a couple is unmarried and have children born prior to December 2003 the surviving father will not get automatic Parental Responsibility, even if they are on the birth certificate. They must either re-register the birth, have the mother set up a Parental Responsibility Agreement, or marry the mother.
This means that unless the father of a child born prior to December 2003 is or was married to the mother only the mother has an automatic right to appoint Guardians. By making a Will, ‘Parental Responsibility’ can be given through appointment of Guardianship to the unmarried birth father.
Since December 2003, whether or not married to the mother of the child, as long as the father is on the birth certificate he will have automatic Parental Responsibility.
12) Should I appoint the Guardians as Trustees?
It is very common for the Guardians to be appointed Trustees, as it normally follows that if you trust someone to take care of your children, then you would also trust them with access to the assets to be used to provide for them. However, there may be instances where you would not want the Guardian to have direct access to the assets – e.g. they may be your ex-partner or spouse – in which case they will have to go through an alternative Trustee.
13) Are my step-children included when I leave my estate to “my children” ?
Under your Will, any reference to the class of beneficiary ‘my children’ will not include your step-children and hence they will not be provided for. This is because step children do not come into the definition of ‘children’ for the purposes of making a Will – which include natural (bloodline, including illegitimate) and adopted children, and children born to you by IVF. It is also possible to draft your Will so that it provides for children that may be born after you have written your Will, or even those born after your death.
To ensure step-children benefit from your estate you need to include ‘my children and step-children’ or name them individually.
If you are ‘maintaining’ step-children at the time of your death and have not included them in your Will, under the terms of the ‘Inheritance (Provision for Family & Dependents) Act 1975’, they could contest your Will on the grounds they have not been sufficiently provided for, which could be devastating for your own family, and result in substantial delays in the execution of your estate.
14) Can children under 18 inherit from my Estate?
In general, children cannot inherit until they reach 18; below this age the funds are held in Trust and can be used for their maintenance, education and general benefit. The Trustees decide what income and/or capital can be used, and for what purpose e.g. to pay school fees.
If you think that 18 is too young for your child/children to inherit a large sum of money, you can specify in your Will that they do not receive the capital sum until a later age, eg 21 or 25. They will, however, be entitled to receive any income from the Trust Fund as soon as they reach 18, and there will be tax consequence for ages of receipt over 18.
In certain circumstances, if the Trustees deem it appropriate, it is possible for children to receive their inheritance from the age of 16, or for it to be forwarded to their Guardians, with the Trustees having no further responsibility for how it is used.
15) What happens if I leave someone out of my Will?
If you have not properly provided for any of your dependents who are unable to maintain themselves, or if you have not fairly provided for your spouse or civil partner (or even an ex-spouse who has not remarried), the Court can alter your Will, under the Inheritance Provision for Dependents Act 1975, if it is challenged.
16) What is included in ‘my estate’?
Your ‘estate’ is everything you own at the time of your death which you are beneficially entitled to give away. It may include; properties, bank accounts, personal possessions (also known as Chattels), investments, and any Businesses you own.
Your estate does not include money in a joint account or other jointly owned assets, such as the family home held as ‘beneficial joint tenants’ with your spouse/partner. These jointly held assets will pass automatically ‘by survivorship’ to the other joint owners.
Also not included, are Life Assurance policies where you have previously nominated who the beneficiary should be on your death. Likewise from your employment, your Death In Service benefit and Pension are also not normally included as these are held in trust for whoever you have already nominated.
17) What does “Residue” mean?
This is everything that’s left of your estate after all your outstanding liabilities have been settled (such as: probate costs, inheritance tax and funeral expenses) and all of your specific gifts have been given out.
18) What is Inheritance Tax (IHT) and when is it paid?
IHT is a tax payable as a percentage of your estate to the Government. As a rule of thumb, if your estate is worth more than the Nil Rate Band (NRB) – the amount an individual can leave without being taxed, currently £325,000 (twice this for the 2nd to die of a married couple) – it will be subject to the rules governing IHT.
The rate of IHT is charged at 40% of everything over the NRB, but this is a very specialist area as if you have made gifts in the 7 years prior to death, or if you have remarried after the death of your first spouse, the situation is far more complex. If your estate is over the NRB, specialist advice must be sought by a specialist Estate Planner on how best to mitigate IHT in your personal circumstances.
If you die without a Will a sizable amount of your Nil Rate Band could be lost and your Estate could pay tax that could so easily have been avoided.
19) What effect will marriage, separation or divorce have on my Will?
In England & Wales, if you get married or remarried after you have made a Will it is automatically revoked, unless it specifically details that it was made in contemplation of the marriage, as you have become a different ‘legal entity’. Since the introduction of new legislation in December 2005, Civil Partners will be treated the same way as married couples for the purposes of Intestacy Law.
If you get separated, your Will is not affected, but you should definitely amend it as, if you were to die your estranged spouse/partner would still benefit under the terms of your Will, which is unlikely to be your intention.
If you get divorced, any appointment (eg Executor) or gifts in favour of your former spouse / civil partner will fail (unless the Will states otherwise), and therefore your Will would be read as if they had already died. However, it is advisable to review your Will in these circumstances to ensure you have made provision for alternative appointments or beneficiaries.
20) When should I review my Will?
- You should review your Will at least every 3-5 years as standard, or sooner if there are major changes to your circumstances, such as:-
- Marriage/divorce – all or part of your Will may be revoked
- Trouble in a marriage or civil partnership – either of the Testator or their Beneficiaries
- Birth of further children or of Grandchildren
- Changes to choice of Guardians or Executors – maybe due to death or age implications
- Arrival of children making appointment of Guardians necessary for the first time.
- Estate Planning requirements – financial changes which affect your Inheritance Tax liability, or a need to protect assets eg protect the family home to avoid it being sold by the Local Authority to pay potential future care fees.
- Need to assure the housing situation of an adult child who has not left home or has unexpectedly returned eg due to a relationship break-up.
- About to go on holiday, or imminent surgery / sudden illness.
- Wayward beneficiaries – the need to protect their inheritance so they do not waste it
21) How can I avoid the Local Authority selling my home if I’m taken into Care?
It would be perfectly natural for you and your spouse/partner to each make a provision in your Will, that upon the 1st death, the deceased’s half-share of the family assets and/or home, is placed in Trust for the benefit of their surviving spouse and children or other beneficiaries, instead of passing directly to the surviving spouse.
In this way, if the surviving spouse goes into care, the estate of the 1st to die will not be taken into account for their care fees and will ultimately pass to the children on 2nd death.
22) What provisions should I make for my Company?
If you are a director in a Limited company, you need to think about who you (or your fellow directors) would want your shares to pass to in the event of your death? Without a formal arrangement in place, the shares would fall into the deceased’s estate and would more than likely go to his or her family who could then end up with a controlling share and a say in how the company is run.
It is quite likely that this would not be a satisfactory outcome for anyone. The death of a shareholder or a valued and skilled employee can have a major impact upon a business and it is essential that the right decisions are made in advance to ensure that the business can continue with as little disruption as possible.
If a director in your company is responsible for repaying a specific loan or debt, how would you repay it in the event of their death? If you are in a Partnership, what would happen in the event of a fellow partner dying?
The first step to take is to find out what provision your Company documents (Memorandum & Articles of Association) make in the event of the death or loss of mental capacity of one of the directors. Speak to your company Accountant if they set it up for you, and agree the necessary amendments. If you have no Partnership Agreement in place you need to get one – ASAP!
You can provide protection for your Business in your Will by the use of a Business Continuity clause, or a Business Trust, but if its provisions are contrary to your company documents they will trump the Will. It is a very important, and specialist area, and specialist advice must be sought, to protect your loved ones, fellow directors/partners and staff.
You should all also put in place Powers of Attorney to ensure the business can continue without a hitch in the event of a loss of mental capacity by one of the directors/partners – such as through an accident, illness, dementia or a stroke.
23) Where should I keep my Will?
There is no legal requirement determining where a Will should be stored but you should inform your Executors where it is, so they can find it when they need it after your death.
It is NOT advisable to keep a Will in a Bank or other safety deposit box, because after your death your Executors will not be able to open that box without obtaining a Court Order.
Likewise it is best not to keep it in the home, in case of fire or water damage, loss or theft, or in case at the relevant time it is found by someone who does not like what it says, and it ‘disappears’!
We provide our clients with a professional alternative to storing their Will at home.
Click here for a Fact Sheet
24) Can my Will be changed after my death?
Normally no, however a Deed of Variation may be exercised within two years of the Testator’s death to alter the terms of a Will with the agreement of all the effected residuary beneficiaries, often used for tax reasons, or to protect assets eg from the potential future care fees of the surviving spouse. This is an expensive option, and dependent on gaining everybody’s agreement, so it is far better to ensure your Will is kept up to date to ensure it contains the relevant estate planning procedures.
There may also be instances where a Court could make a judgement, such as if you have excluded someone who has a beneficial entitlement to contest your Will. This can result in substantial delays, additional costs and stress for your remaining beneficiaries, so you should always take specialist advice before excluding someone potentially entitled to inherit from your Will, or providing them with only a token gift.