10 Things to Consider When Preparing a Will
The death of a loved one is possibly the most painful thing we endure as humans and it’s not surprising that it is a difficult topic of conversation for many people.
However, it is vital that we face up to the only inevitability in life and prepare a Will to specify who inherits our estate on our deaths.
When I practiced as a solicitor, I noticed that most Wills were prepared as an immediate reaction to something. The catalyst for facing mortality had many reasons ranging from big holidays, health scares, births, marriages and deaths to day-to-day changes in circumstances. Another thing I witnessed was the occasional chaos, heart-breaking arguments and large legal fees that were most frequently born out of situations with no valid Will and/or no up-to-date Will. In contrast, as a widow myself, I experienced the benefit of my husband having a Will that correctly set out his wishes and I am passionate that others do the same. This article covers some things you may wish to consider when preparing a Will and what happens if you don’t make a Will.
The basics
Wills are the only legal documents that state who will inherit your assets on your death. Your Will can specify who will care for your children and it helps your Executors (the individuals that you appoint to deal with the administration of your estate) to carry out their duties after your death.
10 things to consider when preparing your Will:
Executors and Trustees
These individuals will administer your estate and it is vital that you choose people you trust and who are able and willing to carry out the role. They will need to pay the debts, complete inheritance tax forms, apply for the Grant of Probate and distribute the estate to your beneficiaries. If you do not specify otherwise, it is likely that the Executors will also be the Trustees of any trust in your Will.Guardians
If you do not name the individual(s) you want to care for your children, then the courts will decide who will have parental responsibility for your child(ren) after your death.Funeral wishes
It is useful for your Will to include whether you wish to be buried or cremated. Any additional information, such as where ashes are to be scattered, funeral music and readings, eulogies etc can be put in a side letter to help the Executors and next of kin organise your service. Although a side letter is not legally binding, you can change it easier if your wishes change.Do the finances!
There needs to be sufficient money to pay for your funeral and any legacies, so it is important that you add up the value of all your assets, including property, investments, bank accounts, personal possessions and family heirlooms, and deduct all your liabilities, such as your mortgage and other debts to ensure that there is sufficient funds and assets to make the gifts you want in your Will.Check joint ownership and local laws
How you own property jointly may determine whether that jointly owned asset passes through your Will or whether it passes automatically to a surviving joint owner. Similarly, it is important to check how foreign assets pass on death, so you should get advice from lawyers in every country in which you own assets, to ensure that your wishes and the terms of your Will comply with local laws.Tax
If you are over the inheritance tax threshold then significant tax may be payable and specialist tax advice should be sought if you wish to mitigate any possible tax liability, for example, you may wish to consider leaving assets to charity to both reduce the tax bill and benefit a worthy cause.Correct execution of the Will
It is vital that Wills are executed and witnessed in accordance with the strict rules for Will signing. Instructing a solicitor should give you the peace of mind that you have not inadvertently invalidated your Will by not signing it properly or getting the wrong people to act as witnesses.Your Will may become a public document
You should think carefully about what information you put in your Will because once a Grant of Probate has been obtained Wills become public documents. Information such as telephone numbers and bank account numbers should not go into the Will document itself.Don’t forget life policies and pensions!
Although life policies and pensions frequently pass outside the estate, it is important to take them into account when planning who gets what on your death. It is important to check that you have done the relevant nominations to place policies into trust and make sure that you understand how these assets pass on your death as different financial products can have different rules.Will storage
Most solicitors have a facility to store your Will in their ‘strong room’ and they will then give you a signed copy. It can be useful to speak to the individuals named as Executors, Trustees and Guardians, both to get their agreement to act and to let them know where they might find the Will and other information that they will need to carry out their role.
What happens if there is no valid Will
Most people know that failure to prepare a Will means that your estate will pass in accordance with the laws of intestacy, which are the set of rules specifying who is entitled to a share in the estate. These rules may result in assets passing to people that you do not want to inherit from your estate and the laws of intestacy do not specify who will care for your children. Furthermore, intestate estates often result in more time and money being needed to deal with the estate, as well as possible family strife and arguments after your death. This can all be avoided if you prepare a Will and set out what your wishes are.
Importance of instructing a professional
The rise of disputes amongst individuals after a person’s death is illustrated by the growth of many law firm probate litigation departments over recent years. Although it is possible to write a Will yourself, or through an online provider, we strongly recommend that you get professional help from a Private Client solicitor who can talk you through the complexities of tax, trusts, ownership, as well as ensuring the legal documents are correctly prepared and signed.
Emma’s thoughts:
All adults should have a Will: as mentioned above, your Will is the only legal document that specifies who inherits your assets on your death, so every adult who owns assets should have a Will.
How often should you review your Will? All Wills can benefit from an annual review, but obviously if there are key events (such as births, new relationships or deaths) or assets mentioned in the Will change then a new Will becomes urgent. It is important that you are comfortable that your Will reflects your current wishes.
Appoint people you trust: Executors, Trustees and Guardians should be people who you trust to be able to carry out those roles.
Get professional advice: there will be a cost to instruct a specialist adviser but it is likely to be more costly in both time and money if your Will is incorrect, so make sure you instruct a qualified professional such as a STEP and/or Solicitors for the Elderly solicitor.
Make sure it is signed correctly: there are strict rules about the signing of Will - both how they are witnessed and who can witness your signature. It is vital that you get this right, otherwise your Will is invalid.
Don’t avoid the tricky conversations: talking may be uncomfortable but facing up to uncomfortable discussions is likely to save your loved ones time, emotional energy and money. If you cannot manage to have conversations, you can write down information but make sure to tell people where to find those instructions after your death.
DO IT NOW! No one knows what fate has in store for us. Please do not delay, because a sudden death leaves no time for legal paperwork.
You will never find time for anything.
If you want time you must make it.
Charles Buxton
Please note: Emma is not a practising solicitor and she does not provide specific legal advice. The information set out in this article is for general interest only and is based on information freely available in the public domain. Before making any decision or taking any action with regard to the content of this article, you should consult a legal professional who can provide specific advice relevant to your facts and circumstances.