Wills FAQ

What is a Will?

Why is it important to make a Will?

What should I take into account when I make
gifts of things?

What should I take into account with the remainder of my estate?

Who can benefit from my estate?

What if my main beneficiary dies before me?

Can I change my Will?

Why should I make a Will?

Where should I keep my Will?

What happens if I don't make a Will?

Why do I need a solicitor?

What can I say in a Will?

Can I change it once it is done?

What can I not leave in a Will?

Why can I not write my own Will?

What if I jointly own property?

Do I need to tell anyone about my Will?

What is a Mirror Will?

What happens if I die with a valid Will in place?

What is an Executor?

What happens if I get married or divorced?

What is a Guardian?

Where should I keep my Will?

When is inheritance tax payable?

What are executors and who is allowed
to be one?

Who can dispute a Will?

Should I appoint guardians for my children?

When should I review my Will for possible changes?

What should I take into account when
I make gifts of money?

What if someone dies who I have left a gift to in my Will?

 

 What is a Will?
A Will is a document which sets out who is to benefit from your property after your death and how your estate is to be divided.

The Will also appoints the person who Will manage or administer the estate.

Why is it important to make a ?
Making a Will enables YOU to choose who Will get what instead of leaving the choice up to the Government.

You may think you are not wealthy enough, but if you add up the value of your house, car, shares, insurance policies etc. the total may be more than you think.

A Will is important if you have children, particularly if you are a separated or unmarried parent as you may wish to appoint a guardian.

Careful planning in the preparation of your Will can ensure that you minimise the effects of inheritance tax.

Leaving no Will can also create worries for your family at a time of bereavement.

Who can benefit from my estate?
You can leave your property to anyone you wish. You can only leave your property to a friend, an unmarried partner or a charity by making a Will.

If you have been supporting someone financially and do not provide for them in your Will they may be able to go to court and claim a share in your estate.

Can I change my Will?
Yes. You should review your Will every couple of years or when your situation changes through marriage, separation or divorce, or if you buy a house or receive an inheritance.

Minor changes only need a small amendment called a codicil. Anything complicated is probably best dealt with by making a new Will.

Where should I keep my Will ?
There is no formal requirement as to where a Will should be stored but obviously it should be kept in a safe place that is easily accessible.

For your peace of mind our online Wills service can store your original Will securely for a nominal fee of £20.00 per annum (payable by standing order).

It is not advisable to keep a Will in a safety deposit box because after your death your will executors will not be able to open that box without obtaining a Court Order.

You should always make a copy of your Will (which should clearly be marked "copy" on all pages) and make a note on the copy where the original is kept. Finally tell your executors where you have kept your Will and give them a letter of instruction regarding any matters that you do not wish to include in your Will (but do not staple or attach this to the Will in any way).

Why do I need a solicitor?
Your Will is an importantlegal document. Will writing solicitors are experienced not only in drawing Wills up, but advising on important related matters of law, such as succession, taxation, property matters and family problems.

Can I change it once it is done?
You can change your Will at any time and as often as you wish. You must however be 'of sound mind' to amend your Will.

Why can I not write my own 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 add to the cost of finalising your wishes.

Do I need to tell anyone about my Will?
It is advisable but not essential to tell anyone about the existence of your Will. It is wise to tell to executors of your Will and keep a copy of it with other important papers which Will be checked after your death. The original must be kept in a safe place. We offer storage facilities.

What happens if I die with a valid Will in place?
If you die without a valid Will in place you Will be deemed to have died intestate. Dieing intestate brings with it a range of problems.

What happens if I get married or divorced?
If you marry your Will is usually revoked (cancelled) and would mean a new Will would need to be made. We can assist you in writing your new Will.

Where should I keep my Will?
You should keep your original Will in a safe place. It is advised to keep it with your solicitor or at your bank for example. We offer a Will storing service which you can use to ensure that your Will is safe.

What are executors and who is allowed to be one?
Executors are responsible for finalising all the details of your Will, such as obtaining probate and winding up of the estate. Anybody over the age of 18 at you death and of sound mind can be an executor. You can also appoint a bank trustee department to be an executor. It general, Will executors must be considered to be capable of the role and above all honest.

Should I appoint guardians for my children?
You may want to appoint guardians of your children (under 18 years) if you do not have a close family member who is the next of kin and who would not hesitate to look after your child or children should some tragedy occur. A guardian does not have to physically look after a child but he or she is responsible for ensuring that the child is properly cared for.

If you do wish to appoint guardians here are some points to remember. Please seek professional help if you require any further advice.

You should appoint someone who is unlikely to be elderly or infirm by the time that your youngest child attains his or her majority. You should seek the guardians consent before you consider appointing him or her. Remember that if you are separated or divorced and the other parent has parental responsibility then the appointment of a testamentary guardian Will not come into effect until the surviving parent dies.

What should I take into account when I make gifts of money?

We recommend that any bequests of money should be kept to a small proportion of your total estate. This is because of the technical rules of English Law by which all such gifts are paid first out of the estate which may be unfair to the person who is to receive what is left. In our standard Will the estate Will bear the tax, if any, on the gift.

What should I take into account when I make gifts of things?

Remember that, as with gifts of money, you should keep the value of the gifts to a small proportion of your total estate. In our standard Will the estate Will bear the tax, if any, on the gift. Remember that the beneficiary Will have to pay the costs of transportation, an important consideration if the beneficiary lives abroad.

Please ensure that you give a proper description of the item you are leaving. The description should be such that an independent person could identify the item without having to ask questions for further clarification. It would be a good idea if you took an photograph of the thing in question and write on the reverse what it is and then leave it with your Will.

What should I take into account with the remainder of my estate?

You need to decide who is to receive the balance of your estate (called the 'residue'). This is usually your main beneficiary assuming that you have kept the gifts of money and things to a minimum. You can leave the residue to one person or a number of persons in equal or unequal shares. You can also leave the residue to be divided between a class of persons such as your 'children' or your 'nephews and nieces'. Remember that the word child or children includes adopted and illegitimate children.

What if my main beneficiary dies before me?

You need to provide for the circumstance if your main beneficiary dies first. This is not absolutely necessary but we would say it is unwise not to provide for an alternative. As with the gift of residue this alternative gift can be to one person a number of named persons in equal or unequal shares or to a class of persons. In our standard Will we provide for you to make your children as the alternative beneficiaries. It is important for you to know that if a child who is taking a benefit from your estate dies before you then the child's children (your grandchildren) Will take the share that your child would have received. If there is more than one grandchild in this circumstance then they Will share equally.

Why should I make a Will?
Making a Will enables you to choose exactly what happens to all of your assets by specifying how these are to be distributed after you have died. Writing a Will also gives you the peace of mind knowing that you have yourself chosen who gets what and it considerably simplifies the required formalities and reduces costs at a very stressful time for your family.

Also, if you have any children, making a Will enables you to appoint guardians to look after them in the event of your death (if the other parent is unable to do so).

What happens if I don't make a Will?
If you don't make a legal Will, your estate (your personal belongings, property, savings etc) Will be distributed to your next of kin after the payment of any debts according to the laws of intestacy regardless of your personal wishes and/or your relationship to that person at the time of your death. This could mean that your spouse might not receive the whole of your estate or an unmarried partner might not receive anything and/or you might be liable to unnecessary tax.

What can I say in a Will ?
When you make a legal will you can say how you would like your financial affairs to be dealt with after your death. You can also add any personal comments and if you wish, choose whether you want to be buried or cremated. You can decide if you would like a formal service and if so specify where it should be held. You can also choose if there should be a sermon or any particular hymns. Your Will does not have to be a long and complex document and it should always be as clear and simple to understand as possible.

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:

1. PROPERTY
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.

2. LIFE POLICIES
If you have a life insurance policy it Will usually be drawn up on trust for someone else so it Will not therefore become part of your estate when you die - for this reason you do not need to mention it in a Will.

3. PENSIONS
In exactly the same way as any 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 if I jointly own property ?
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 nor any purpose in doing so.

However, if you own a share of a property as "tenants in common" (e.g. this is more likely in the case of an unmarried couple) 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, you must seek legal advice, without a valid Will it can take months or sometimes even years to sort out your affairs and in the meantime your surviving dependants (either a spouse or a partner or a child) have all the usual household expenses and possibly no access to any money because all of your income may be frozen until everything has been sorted out. 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 ?
A Mirror Will is when a husband, wife or partner make almost identical Wills leaving everything to each other if one of them dies and then if they both die together to their children (if any) or, if there are no children then to someone else.

Technically there is no such thing as a "Joint Will" - there must be two completely separate legal documents although they Will both have very similar contents that "mirror" each other.

What is an Executor ?
The executor Will be in charge of winding up your estate - this means paying your debts, selling your property if necessary and handing over the balance to those entitled to it. The executor has no role to play until after your death.

They Will collect in your assets, pay all your debts and any inheritance tax, deal with any specific legacies that you have left and then distribute the remainder of your estate in accordance with your wishes.

If you have any children they Will also act as trustees to look after monies until they are old enough to inherit and they Will also be able to use the trust money to help support them in the meantime.

You can appoint up to four executors including one of the beneficiaries (e.g. your spouse/partner), it is common for a Will to appoint a main beneficiary as an executor). If you appoint your spouse/partner they can act on their own (with reserves appointed to act if they die before you) or jointly with another person or persons.

We recommend that you appoint at least two executors in case one of them is unable to act for whatever reason.

Make sure that your chosen executors are prepared to act because they cannot be forced to do so.

When your Will is completed it should be kept in a safe place and you must tell your executors where it is stored.

What is a Guardian ?
When making a Will you need to consider who should be the guardians of any children under the age of 18 years who may survive you. Usually the appointment of a guardian or guardians takes effect on the death of the second parent.

The duties of a guardian are similar to those of a parent. They are responsible for the day to day upbringing of your child as if he/she was their own. Normally it is best to appoint 2 members of your family as your guardians who are living together in a stable relationship but if the children are grown up it may, depending upon your own personal circumstances, be more appropriate to appoint close friends.

Don't worry about leaving any money to the guardians for the purpose of enabling them to carry out their duties. Your executors (who should not be the same as the guardians) Will be able to authorise the use of any monies that you have left to the children for their benefit until they are old enough to inherit.

Finally when you make a Will, don't forget to tell the proposed guardian of your intention to appoint them to ensure that they are Willing to take on the responsibility of looking after your children if this becomes necessary.

What if someone dies who I have left a gift to in my Will ?
If when making a Will you leave a gift of an item or money to someone who then dies before you, that gift goes back into your estate as if it had not been left to anyone in the first place.

If they die before they receive their legacy but survive you by more than 30 days then they Will receive their gift posthumously and it Will then form part of their estate.

However if someone who you leave a gift to fails to survive you by more than 30 days then their share is divided among the other beneficiaries in the same proportion to each other as before.

Who can dispute a Will ?
Very few Wills are ever disputed but a spouse, former spouse, child, grandchild, parent and "common law husband/wife" may all be able to make a claim if they believe that they are entitled to more, or that they were omitted without reason, or that your wishes have been misinterpreted or misunderstood.

If you omit any of the above without a clause giving your reasons either in the Will itself or in a signed statement that you give to your executors, a Court might decide that their omission was an unintentional oversight.

To get a Will invalidated for any other reason someone would have to go to Court to prove:

a) that you were of unsound mind or

b) you were unduly influenced by someone else or

c) your signature was forged or

d) the Will has been altered or tampered with in some way

To prevent any disputes always try to make sure that a Will is clearly written, that it is not ambiguous in any way and that your wishes are clear and concise.

When should I review my Will for possible changes?
Generally you should review your Will every time a "life event" happens. For example if you separate from your spouse or partner, if you have a child, if there is a death in your family, if there is a change in your financial circumstances, if there are changes in the types or rates of taxation, or if you are going to live abroad.

In particular it is important to know that you should make a new Will if you marry or remarry because any previous Will is then automatically revoked unless it contains a clause that says it is being made in contemplation of marriage (our online Wills programme offers this option). Although getting divorced does not automatically revoke a Will any clause that refers to a former spouse Will no longer be valid and if he or she is named as an executor then they Will not be allowed to act.

For all of the above reasons our online Wills service has made it simple for you to update your Will at any time in the future. All of the information contained in your most recent Will is always securely stored on our site so with your own username and password (and for a nominal fee) you can easily make changes (without having to go through the whole process) whenever you want.

When is inheritance tax payable?
Any assets passed to a husband or wife are exempt and the first £300,000 of your estate (the Nil Rate Band) will also be free of inheritance tax but everything above that figure Will be taxed at 40%.

When considering whether any inheritance tax Will be payable on your estate you should add up all of your assets (property, savings, stocks and shares, premium bonds etc) and then deduct any liabilities (mortgage, credit cards, loans etc).

Remember not to include anything that Will not form part of your estate (e.g. property held jointly with someone else as joint tenants and usually any life policies and pensions).

If your net estate is more than £300,000 tax Will also be payable on any gifts (exceeding more than £3000 in total in any tax year) made within 7 years of your death but again this does not include anything given to your spouse.

It is important to know that all gifts to a registered charity are tax free and there are also tax allowances for some gifts of agricultural or business interests.