1 l QualitySolicitors Large & Gibson l Top 10 things to consider when making a Will

TOP 10 THINGS TO CONSIDER WHEN MAKING A WILL

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WHY MAKE A WILL?

Although making a Will is not something most of us relish it is important to do so whatever your age. A Will protects your loved ones by helping them to avoid unnecessary worries at the worst possible time, and it gives you the reassurance that your wishes will be honoured.

Having a Will means that your property and possessions will be distributed as you have decided. When someone dies without a Will (intestate) the law decides who will inherit according to the rules of intestacy. These rules can be a lot more complicated and mean that an estate will not necessarily benefit the right people. For instance, step children and step grandchildren will not inherit.

A Will is not just important for making sure your money and possessions go to those you choose. It is also where you can express other wishes including the guardianship of any young children.

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THE DIFFERENCE BETWEEN SEPARATE AND JOINT WILLS

Separate Wills are the most usual choice for both single people and couples. These are simple Wills, sworn by one individual and they are suitable for everybody. A separate Will expresses an individual’s wishes about how they would like their estate to be distributed and any practical arrangements they would like to be followed after their death.

Joint Wills are more unusual. They are made by married couples or those in long-term relationships, and they detail joint wishes. With a joint Will the surviving spouse will inherit the whole estate. These Wills can be more problematic than separate Wills for several reasons, the biggest difficulty being that the Will is ‘locked in’ because the wishes of the person who has died cannot easily be changed.

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l A GUIDE TO HELP YOU

The power of planning ahead should not be overlooked when it comes to something as important as your legacy. We understand your want to protect your estate, ensure the financial wellbeing of your family after you’re gone, and have your last wishes legally protected. The only way this can be guaranteed is by having early conversations with loved ones and engaging an experienced lawyer to draft a tailored Will.

EXECUTOR AND TRUSTEES

The executor of a Will is the person responsible for distributing the estate to the beneficiaries and paying any outstanding debts. You can choose more than one person to execute your Will, but they must be over 18 years old. It is important to choose somebody who is organised, responsible and happy to accept the role.

The role of an executor is different to that of a trustee, although they can be the same person. If your Will contains a trust or trusts you will need to appoint a trustee (or trustees) to manage the trust. After an executor has administered the estate they pass the trust assets to the trustee.

It is the obligation of the trustee to manage the trust in the best interests of the beneficiaries in accordance with the terms of the Will trust.

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INHERITANCE TAX

Inheritance Tax is a one-off tax that is paid on the value of an estate over £325,000. Over that threshold 40% tax is paid. Unless you also qualify for the additional residence nil rate band now available to those leaving thier main residence to lineal decendants, in which case your estate can claim an extra £175,000. Married couples and registered civil partners do not have to pay Inheritance Tax on property or money left to them by their spouse. Other couples do not share this benefit but they could save Inheritance Tax by setting up Discretionary Trusts in their Wills.

There are ways to reduce Inheritance Tax through charitable giving, agricultural and business property relief. Our team of legal experts can advise you on the best ways to protect your assets.

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GUARDIANS

Normally if one parent dies the other parent has custody of minor children. If you have young children it is wise to consider what will happen in the event that the other parent dies or if you do not want custody to go to an ex-spouse.

If you do not name a legal guardian in your Will the courts will decide who will raise your children. Although a court will not automatically approve your decision, they are likely to do so if you have explained your reasons.

When choosing a legal guardian make sure they agree to take care of your children. Also consider naming a second choice in your Will in case your first choice cannot step in if the worst happens.

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NAMING BENEFICIARIES IN A WILL

Will beneficiaries are people who will inherit an estate. Normally people choose close family as their beneficiaries but there are other factors to consider:

l What will happen if you and your partner or spouse die at the same time?

l Could your spouse remarry and disinherit your children?

l If you have children from a previous relationship will they be provided for?

l Who will benefit if your spouse and children die together?

It is in your loved ones’ best interests to consider unexpected and unlikely events when writing your Will. Clearly explain how your estate will be shared amongst them, allocating specific possessions and sums of money.

You may want to name beneficiaries under the age of 18 in your Will. In this case you might consider setting up a trust so that they can inherit once they reach a specific age. You can also give permission to trustees to release funds earlier if, for example, a child needs money to complete their education.

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LETTER OF WISHES

You can write a Letter of Wishes to accompany your Will. It is not legally binding but may help executors to carry out your wishes. The letter can advise on a range of matters but it must not conflict with your Will. The letter might detail:

l Who to notify (or not to notify) about your death.

l Funeral instructions.

l Advice for guardians about how you would like your children to be raised – this might include education and religious upbringing.

l Advice for trustees to help them to manage any Will trusts.

l Information that will help executors to locate the assets specified in your Will.

l An explanation of the contents of your Will such as why somebody has been included in it or excluded from it, especially if you think your decision could be challenged later.

Your Letter of Wishes should be signed, dated and written in plain English. It must not be witnessed otherwise a claim could be made that it is actually a legal Will.

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COHABITING OR UNMARRIED COUPLES

Unmarried couples who are not in a civil partnership will not automatically inherit anything from their partner unless they jointly own a property. They are also liable for Inheritance Tax (see above).

It is especially important to make Wills if you are an unmarried couple because it’s the only way to make sure you will inherit each other’s estate.

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WHERE TO KEEP MY WILL

Keep your Will in a safe place and tell your executors where it is kept. There are different options for storing a Will.

The Probate Service, operated by the Government, can store your Will for a small fee. The downside is that you have to take your Will to a probate registry office, and you need to complete their paperwork which must be witnessed. The process takes more time than other services.

You could keep your Will at home which saves costs but any damage from spillages, mould, damp etc. will invalidate it.

We can store your Will securely, free of charge in our saferoom. This is a lifetime offer with no annual charges to pay. Our service means that your Will can easily be found when the time comes.

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PROTECTING YOUR ASSETS

If your spouse remarries after your death, the estate they inherited from you could later be left to their new partner and family which may not be what you would have wished, especially if you have children from a previous marriage. One way to prevent this is to set up a Life Interest Trust which means that all your assets including property will be held in trust. Upon your death the trust will pass to the beneficiaries you have chosen.

Another trust that can be set up is a Property Trust. This is a way of ring-fencing your share of a family home so it cannot be used by the Local Authority to pay for long-term care fees. For example, if your spouse needs long-term care after your death the share of the property they have a life intrest in cannot be taken into account to assess their means.

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l Call us on 02392 296 296

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