A Guide to Making a Will

It is particularly important to make a Will if you are not married to your partner. This is because the law does not automatically recognise partners as having the same rights as husbands and wives. As a result, even if you’ve lived together for many years, your partner may be left with nothing if you have not made a Will. A Will is also vital if you have children or dependants who may not be able to care for themselves. Without a Will there could be uncertainty about who will look after or provide for them if you die. Your solicitor can also advise you on how inheritance tax affects what you own.

You should always consider taking legal advice about making a Will but more so if:

• several people could make a claim on your estate when you die because they depend on you financially;
• your permanent home is not in the UK or you are not a British citizen;
• you live here but you have overseas property; or
• you own all or part of a business.

Once you have had a Will drawn up, some changes to your circumstances (for example, marriage, separation or divorce) can make all or part of that Will invalid or inadequate. This means that you must review your Will regularly, to reflect any major life changes. We can tell you what changes may be necessary to update your Will.

What we will need to know

What you own – Details of everything you own, including property, cars, personal valuables, stocks and shares, bank accounts, insurance policies, any businesses you own, and pensions.

Details of your family and marital status – Are you divorced, remarried or living with a partner? Do you have any children or any other dependants? Anyone who depends on you financially can ask a court to review your Will if they feel you have not provided properly for them. If you give us relevant details, we can tell you about any legal pitfalls.

Executors

You must appoint Executors to carry out the instructions in your Will. Executors are often called Trustees in your Will as sometimes they hold money “on trust”; e.g. if you have children under the age of 18. It is wise to have two Executors and you may appoint a member of your family or a friend. Partners of our firm will be pleased to act as your Executors either alone or with a member of your family or friend.

Guardians

If you have children under 18 you may want to appoint one or two people to act as guardians. As guardianship involves a great deal of responsibility you should ask people to agree to act before appointing them. It is advisable for them to be different persons from the Executors.

Who gets what? – Beneficiaries

Who do you want to leave these assets to? These are your beneficiaries. How do you want to divide your property between your loved ones, friends or charities? Are there any conditions you want to attach to these gifts?

Any person named in your Will as a beneficiary needs to be identified clearly so as to avoid any confusion after your death. Accordingly, wherever possible, it is always best to provide a full name and, where appropriate, details of that persons relationship to you, as well as an accurate address (which should be kept up to date).

The main part of your estate is called “the residue”. The residue is all that you own in your sole name(other than the above gifts) and after deduction of funeral expenses and debts. Before disposing of this you may wish to consider making specific gifts of cash or personal items (e.g. jewellery) to individual people, organisations or Charities.

Here are some common examples of gifts of residue:

• To one person (husband/wife/partner).
• To several people (children, grandchildren, other relatives, friends).
• To Charity. Where there is more than one beneficiary this can be in equal or unequal shares.
• You should also consider who should benefit if a beneficiary dies before you e.g. the beneficiary’s children.
• If there is an infant beneficiary consider the age when he or she can have the gift e.g. 18, 21 or 25.

Funeral Directions

You may specify in your Will if you wish to be cremated or buried.

Signing the will

Once the Will has been drawn up it is not effective until it has been signed. There are several rules affecting the signature process which, if not followed correctly, will make your Will invalid. For example, witnesses and their husbands and wives cannot benefit under the Will. Many people use staff at their solicitor’s office to act as their witnesses for this reason.

What happens if you don’t make a Will? – Intestacy

If you die Intestate i.e. without leaving a Will, your house, personal belongings, money in the bank and other investments could pass to a member of your family …. but not necessarily the one you would choose or in the shares you would like! At worst, the Government could be entitled to everything you own!

Relatives of the Intestate who may benefit on intestacy are as follows:

1. A spouse
2. Issue (i.e. children or remoter lineal descendants)
3. Parent(s)
4. Brother(s) or sister(s) of the whole blood or their issue
5. Brother(s) or sister(s) of the half blood or their issue
6. Grandparent(s)
7. Uncle(s) or aunt(s) of the whole blood or their issue
8. Uncle(s) or aunt(s) of the half blood or their issue
9. The Crown, Duchy of Lancaster or Duchy of Cornwall

Where a person dies without a Will, there is an order of distribution laid down by Parliament which applies:

1. If you leave a spouse/civil partner and no issue, your spouse/civil partner will inherit everything.
2. If you leave a spouse/civil partner and children, your spouse/civil partner will be entitled to your personal chattels, the first £250,000 of your estate. The balance remaining after the first £250,000 is divided into 2, one half passes to your surviving spouse/civil partner and the other is divided equally amongst your children.
3. If you have no spouse/civil partner but have issue surviving you your children will share your estate equally.
4. If you have no spouse/civil partner or issue surviving you but one of the above relatives, then that relative will take the whole of your estate and, if more than one in the same class, they will share your estate equally.
5. If you die intestate without leaving a surviving spouse/civil partner, issue or other specified relative then your estate will pass to the Crown, the Duchy of Lancaster or Cornwall.

Claimants Against Your Estate

You can dispose of your estate as you wish but if you do not make provision for someone who is a dependent, e.g. a spouse/civil partner, children, cohabitee, they may make a claim against your estate when you die under the Inheritance (Provision for Family and Dependants) Act 1975.

Frequently Asked Questions

Can I appoint my Spouse/Civil Partner to be Executor?

Yes. Often married couples leave everything to each other and appoint each other to be Executors of their respective Wills.

Can I Will Jointly Owned Property To A Third Party?

Many items which are in the joint names of you and another (such as joint bank accounts and, in certain cases, land and houses), pass automatically to the other person on your death, regardless of the terms of the Will. Generally, this will apply to jointly owned houses and land although it is sometimes possible to leave your share to beneficiaries in you Will, depending on how you originally purchased or acquired it. If you are in doubt about this point, you should consult the Solicitor who handled your conveyancing or the Bank or Building Society who holds your deeds before completing your Will instructions.

How long will it take to prepare my Will?

We can prepare a draft for approval within a few days of receiving instructions. In  cases of urgency, we can do this even quicker.

Do I have to come into the office to give instructions?

Not necessarily, although it is usually better to talk face to face. You can give telephone or written instructions or e-mail us.

What happens next?

We prepare a draft and send this to you for approval. When you are happy with the draft you can come to the office to sign the Will or, if it is easier for you, we can send you the Will to sign at home.

Where should I keep the original Will?

If you keep your Will at home you may lose it, accidentally throw it away or it could be destroyed in a fire so we like to keep original Wills for Clients and supply them with a photocopy. We make no charge for this service.

What is a Living Will?

This is a document which, in circumstances which are defined, directs that no treatment is to be given aimed at prolonging or sustaining life and that treatment is to be given to control symptoms even though it may shorten life.

How Taylor Haldane Barlex Solicitors Can Help

You can see that dying intestate (without making a Will) can lead to very complex problems which can so easily be avoided by making a Will. We are able to advise you on the contents of your Will and to prepare a draft for your approval. We can come to your home if this is more convenient for you or you can give us instructions by telephone, letter or e-mail. For further information please contact us.

More information

While we have made every effort to provide accurate information, the law is always changing and affects each person differently.

This leaflet is no substitute for specific advice about you personally and we will not be liable to you if you rely on this leaflet.

Glossary – List of Common Terms

1. “Testator” The person making the Will if male. “TESTATRIX” The person making the Will if female, although Testator is increasingly commonly used for both.

2. “Spouse” Your husband or wife

3. “Specific Gift” A gift of property (e.g. personal belongings) or cash to a named individual or group of persons, e.g. “my cut-glass decanter to Mrs Beryl Smith” or “£1,000 to each of my sons Tony Smith and Robin Smith”

4. “Beneficiary” Someone named or referred to in your Will who will receive some benefit from it

5. “Inheritance Tax” Tax payable to the Inland Revenue if your estate exceeds a prescribed value (£325,000 until 5 April 2015) unless the gift is to a spouse or charity or Inheritance Tax reliefs or exemptions apply

6. “Free of Tax” This wording places the emphasis for payment of tax on your residuary estate rather than on a specific gift of property or cash (if any) to a beneficiary in your Will, i.e. the beneficiary will receive the full value of the legacy given, not a reduced sum after deduction of tax

7. “Contingent Gifts” A gift in your Will made conditional on some event taking place in the foreseeable future – usually on a beneficiary reaching a certain age e.g 18, 21 or 25 years of age

8. “Executor/ Executrix/ Trustee” A person or persons whom you want to look after your affairs and who will give effect to the wishes contained in your Will

9. “Estate” All your property and assets wherever situated

10. “Residuary Estate”, “Residue” What is left in your estate after payment of all debts, funeral and other expenses such as gifts of personal possession and cash

11. “Guardian” A person or persons who will look after your children until they are 18 years old; usually close relatives

12. “Intestacy” A term used to describe the effect on the estate of a person who has failed to make a Will and which is governed by rules set out in an Act of Parliament