A Will is an important and sometimes complex legal document.
Here are some of the most commonly asked questions:
What is a Will?
What happens if I die without a Will? (‘Intestate’)
If you die without a Will you are classed as dying ‘Intestate’. Depending on your particular circumstances, the implications of your intestacy can be far reaching.
Without a valid Will it can take months and even years to sort out your affairs. In the meantime your surviving dependants (either a spouse, partner or child) have all the usual household expenses and possibly no access to any money because all of your income can be frozen until everything has been sorted out.
When there is no Will, contrary to popular belief, your estate will not necessarily pass to your spouse or partner after your death. The Government appointed ‘Rules of Intestacy’ declare who should get what amount, depending on the relationship you had and the value of your estate. Those who co-habit will be entitled to nothing; even a spouse’s inheritance is limited due to the rules of Intestacy.
If you have left a Will it shouldn’t take more than two or three months at most to sort everything out and for your executors to release your assets to the people of your choice.
What is a Mirror Will?
Mirror Wills are prepared for couples who want to make almost identical Wills, i.e. they ‘mirror’ one another. They are separate legal documents with similar content which often leave the estate to one another and then other beneficiaries on second death.
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, investments, and any businesses you own.
What can I not leave in a Will?
It may seem obvious but you can’t leave anything in a Will that you don’t own – usually this includes 3 main categories: Property, Life Policies and Pensions.
If you jointly own property with someone else as joint tenants then upon your death your share automatically goes to the surviving co-owner. It does not therefore form part of your estate and cannot be left to anyone in a Will. However, if you hold the property jointly with someone else as Tenants in Common, your share will not automatically pass to the other person when you die and you can therefore leave it in a Will to whoever you wish.
If you have a life insurance policy it will usually be drawn up on trust for someone else so it does not therefore become part of your estate when you die – for this reason you do not need to mention it in a Will. This is often the case with employees Death in Service benefit too.
In exactly the same way as life policies pension rights may also pass outside a Will (or end on your death) so they do not need to be mentioned either.
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.
What is an Executor?
Executors are responsible for administering your Estate, and putting it through Probate. Executors have the authority to carry out the terms of the will in accordance with your instructions.
Executors can be and often are beneficiaries of your Will. 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.
If you feel that you do not have an appropriate person able to act as an Executor you can appoint Professional Executors, who can charge for their time.
At Farsight Wills we suggest only employing a Professional Executor as a very last resort. We can advise accordingly.
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.
Do I need to appoint Guardians for my Children?
One of the most important aspects of a Will is that it gives parents the opportunity to appoint Guardians. If both parents die without appointing Guardians the children become ‘Wards of Court’ and Social Services and the Authorities will decide where they should live.
Godparents have NO legal standing.
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.
Contact us for a free, comprehensive brochure of what to consider when appointing Guardians.
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. 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.
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 feel that 18 is too young for your beneficiary to inherit you are able to stipulate any age you feel appropriate over this.
What is Probate?
‘Probate’ is the word used to describe the legal process of administering the estate of a person who has died, and, after deducting debts and other liabilities, transferring that person’s money and possessions to the people who will inherit them: their beneficiaries.
Where the deceased person left a Will, the people responsible for administering the estate are known as Executors, and are named in the Will. They need a Grant of Probate, which gives them the authority to deal with the estate. Where there is no Will, the people responsible for administering the estate are called Administrators. Usually, they will be the deceased person’s closest surviving blood relatives.
Administrators need a Grant of Letters of Administration in order to administer the estate. The roles of Executors and Administrators are very similar and the processes that each use to administer estates are generically known as Probate.
What is the difference between ‘Joint Tenants’ and ‘Tenants in Common’?
Many people don’t realise that if they own property (land/buildings jointly with someone else) as “Joint Tenants” (e.g. most married couples own jointly owned property as joint tenants) then their “share” of that property automatically passes to the other person upon death and does not form part of his or her estate. There is therefore no need to make any mention of that “share” of a property in a Will.
However, if you own a share of a property as “Tenants in Common” then you can leave your share of that property to whoever you want in a Will (e.g. to the other co-owner). If you are in any doubt as to how your property is owned and/or you want to change the way that you own it, Farsight Wills can advise you.
Can I change my Will?
Yes. If it is a minor change this can be dealt with by having a ‘codicil’ drawn up. Anything complicated is best dealt with by making a new Will.
At Farsight Wills we suggest reviewing your Will every couple of years, or if your personal situation changes, for example if you buy a house, marry, separate or divorce. We have a diarised system to contact our clients every year which ensures that all of the Wills we produce are kept up to date.
Can I write my own Will or complete an online Will?
It is possible to write your own Will if you wish. This is not recommended for people who have no legal training and many problems can arise through incorrect use of legal terminology. This can cause problems after your death which may substantially add to the cost of finalising your wishes.
In a similar vein writing a Will online is not advisable. A Will is an individual, personal document to suit your particular circumstances and needs to be written with skill and precision in order to ensure that it does what you want, how you want it. We believe that to do this adequately requires a face-to-face discussion to consider your wishes and circumstances and how they can be incorporated.
What happens if I leave someone out of my Will?
If you have not properly provided for any of your dependants 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 Act 1995, if it is challenged.
If you are wishing to exclude an individual or persons it is wise to insert the Exclusion within the Will to avoid any doubt.
Do I have to list in my Will everything I own?
No, Wills are not extensive lists of items you own. If you want specific objects, collections or even amounts of money to go to particular people, then yes you should specify exactly what you want to leave and to whom, but anything you do not identify in your estate (everything not specified – whatever and wherever it is) is dealt with through distribution of the Residue.
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 couples) – 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 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.
When does my Will become Legal?
Once it has been signed, dated and witnessed correctly, your Will is a legal document and needs to be stored safely.
How long is a Will valid for?
A Will remains valid for an unlimited period of time. It is valid until revoked, which can occur in a number of ways:
By destroying it – physically destroying your Will usually revokes it. A Will can be destroyed by another person, but it must be at the request of the testator. Accidental damage of a Will does not revoke it but there might be difficulty in proving that it is valid.
Rubbing out or cutting off the signature of the testator or witnesses may be enough to revoke the Will, similarly water damage obliterating the Testators signature. Crossing out the Will or writing ‘revoked’ across may not be adequate. If part of a Will is destroyed, only that part of the Will is revoked.
‘Missing attachments’ – staple/paperclip marks on a Will can automatically revoke a Will, so it is very important nothing is ever attached to a Will.
By making a new Will – this revokes your old Will, but remember if you don’t destroy your old Will it might come back into force if your new one is revoked or lost.
Your Will is automatically revoked by marriage.
Who can act as my Witnesses?
Generally, anyone can witness the signing of a Will provided they are not a beneficiary in your Will themselves, and are married to anyone who is; otherwise any gift to that beneficiary will fail.
The witnesses must be over 18, sober and of sound mind. They do not have to read the Will, they are purely witnessing you sign the document, and acknowledging by their signature that you know what you are doing (that it is your Will you are signing), you are doing it of your own free Will, and that you have the mental capacity to do so.
You must have 2 witnesses, present together and at the same time, who both witness you sign your Will or acknowledge your signature. They must then each sign in your presence.
Farsight Wills can provide Witnessing at no extra charge if required.
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.
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 residuary beneficiaries, often used for tax reasons, or to protect assets e.g 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.