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The Law Society - Conveyancing

11

May

2018

Making a Will – the Basics

Many people who come to see us have avoided making Wills for many years, superstitious about the process. We always explain that making a Will is a bit like taking out house or car insurance – it’s better to be prepared than to keep your fingers crossed and your eyes closed!

Wills need not be expensive provided they do not incorporate complex twists and turns, Trusts or conditions.  We would, however, strongly caution against using any form of online or ready-made Will – the ‘homemade Will’ can often create much more expense and stress for those left trying to untangle what is often an inadmissible document.  Our team of expert solicitors have trained for many years – both academically and in practice – to prepare a Will which deals effectively and efficiently with your estate.  It is their job to ask questions relating to your assets, your family and your wishes, to ensure that the Will successfully delivers the outcome that you intend.

There are so many hundreds of potential pitfalls and complications which arise in self-drafted or non-professional Wills, where unclear or non legally compliant wording twists your intention and produces an entirely different result from the one you intended. There are also many reasons why a Will can be invalid, including multiple causes from the actual execution and signature of the document, all of which can be avoided by the use of a qualified and regulated professional.   Although your Will may seem simple when seen from the result you wish to achieve, they are complex documents.

Intestacy – the alternative position where you do not have a Will, but leave the law to decide who will inherit your estate, is rarely a better option. Just as you would not dream of leaving a distant relative to manage your bank account, you should consider that choosing who will manage your affairs after death, and where your money should go, are essential decisions you want to make yourself.  Intestacies are also more complex and expensive for those left behind, and often result in family arguments over entitlement.  Bear in mind that the law considers that your spouse and children inherit from you on your death, and you may wish only your spouse to inherit in the first instance, for example, not share this with your children, so that he or she has adequate funds to continue the lifestyle you have enjoyed, and perhaps to pay for care.  If there are no spouse, children or grandchildren to inherit from you, the next choice by intestacy would be your parents; then your siblings and half siblings, then their children, and so on.  These choices made by the law may not be your own, and make no provision for gifts, family dynamics, charitable considerations, appointment of Executors to manage your affairs, funeral wishes, etc.  The list goes on.

In anticipation of a Will appointment we usually recommend that clients consider the following:

Your Estate

A new client should provide us with a brief description of their Estate – what they own, where it is and how much it is worth. This is important not only to fulfil the professional requirements on us to ensure we have confirmed capacity to make a Will, but also allows us to make sure that the Will fits your Estate.  For example, how you own a jointly held property affects what you can do with it in your Will, and this needs to be fully explored and understood before you can ensure that the right result will follow from your Will gifts.

There are also often property considerations to discuss with Wills, as well as advice about Tax free allowances and gifting. The Tax free allowances  – both personal and relating to property – are complex and require detailed advice.  The basic tax free allowance for an individual on death is currently £325,000, with the ability to transfer unused allowance between spouses or civil partners on the first death between a couple, but there are caveats and limitations which need to be understood.  Certain types of gifting pre-death, the creation of certain trusts, payment of premiums on insurance policies for the benefit of another, the date of the first death, allowing family members to live with you rent free – these and so many other issues may reduce the value of the tax fee allowance available to your estate on your death.

Similarly, the new Residence Nil Rate Band Allowance which provides a further allowance to those who own property and pass it to lineal descendants can provide up to £125,000 additional tax free allowance per person at present, with the same ability to transfer between spouses and civil partners. However, this is also subject to complex requirements, including downsizing dates before which the allowance is not available, events which reduce its value, etc.

Your Executors 

You will need to decide who you would like to organize your affairs after your death – these people are called ‘Executors’ and are responsible for ensuring that your affairs are put in order and the terms of your Will are followed.   The role of Executor is particularly important where minors are involved as beneficiaries to your estate, as the Executors will usually act as Trustees for the child or children’s trust Fund for your minority. It is also advisable to contact potential Executors in advance of appointing them in a Will to ensure that they are happy to take on the responsibility of this role;

Your Guardians 

Those with minor children need to decide who should be legally responsible for them on their death. This is always the most emotional and difficult choice, and often the reason why couples do not make Wills as they feel they cannot settle on the right choice.

The keys to choosing Guardians are:

  1. Always consider, when choosing a couple to act as Guardians, whether you would be happy for one of the two to act as Guardian alone if the other one was no longer around for any reason?
  2. Always have a second choice, whether to be used if a couple are no longer together/both alive, or if the first choice refuses;
  3. Don’t put all your eggs in one basket – whilst including a Guardian as one of the Trustees of the Trust fund for your children, it is also important to have other Trustees to provide balance and perspective – remember that those responsible for bringing up your children may not always be the best people to decide what is spent on them, as they are subject to their influence and may find it harder to consider the longer-term impact of their financial choices when under pressure.

Your Trustees  

Where a fund is potentially held for minors, you will need a minimum of two Trustees, and clearly three would assist if majority decisions were to be required. Usually we would expect your Executors and Trustees to be the same people, but this can change if required.

We do recommend that you ‘spread’ the responsibility for the management of Trust Funds between members of your close family and friends, and perhaps consider representatives of both families where a couple are involved.

Your Beneficiaries     

Always make sure you have names and addresses for all beneficiaries of your estate ready for your solicitor. Where people use ‘nicknames’ or abbreviations, remember that their given name should be used if this is the one for which they will be able to produce ID in the future.

Always consider who you would want to receive in place of your chosen beneficiary – for example, if you leave your estate equally between your four children, if one of them were to die before you or within thirty days of you, and couldn’t therefore inherit, who would you want their 25% to go to? Their siblings? Their own children? Their spouse?

If you have minors included as beneficiaries, even grandchildren taking if their parents do not survive to receive their own gifts, you will need to consider the age at which you would like them to inherit. This would usually be at either 21 or 25 years if you chose to defer the age of entitlement from the prescribed legal age of 18

Also always consider that, by leaving to a beneficiary’s spouse, you may unwittingly leave to someone who may have left the relationship and family at the point at which they then inherit from you. If someone is separated, or in the process of a divorce, or identified by name rather than by a category such as ‘spouse or civil partner’, then they would still inherit from you even if this were the case when you died.

We would also always recommend the inclusion of an ‘Armageddon provision’ with ultimate beneficiaries, to inherit in the event that your beneficiaries had predeceased or failed to survive by the requisite period.

Funeral Wishes

Whilst this may, again, be a difficult topic for many, I see a lot of clients who have particular requirements for donation of their organs, bodies etc, and for their funerals. Whether you would plan for a marching band and plumed horses, or a cardboard box in the woods, these instructions are usefully put in or kept with your Will, as this will be the first port of call for family and friends.   Although you may have discussed with your family how you would wish your funeral arrangements to be, they may not easily remember these details in their grief at your passing, and so a Letter of Wishes with your Will can provide certainty and guidance for them at a difficult time, removing stress.

Whilst not legally binding due to public health considerations, letters of wishes and funeral instructions are useful and positive ways to guide your family to fulfil your wishes.

What to Bring with you to your First Meeting with your Solicitor

1. ID – you will be asked to bring with you two forms of photographic and two forms of address ID in the form of a passport/ driving licence, and utility bills or bank statements of less than three months old.  If you have changed your name, please bring your Change of Name Deed.

2. Names and Addresses –  please bring with you the addresses and full names for each Executor, Trustee and Beneficiary to ensure that these are available for drafting your Will, as well as the full name, registered office address and charity number for any charity being included.

3. Your previous Will (if you have one) and a copy of any Lasting or Enduring Power of Attorney.

Our team of expert solicitors are always happy to answer any questions you might have about your current or planned Will.  Please contact Lucy Thomas or Judith Bleetman on 020 8441 1556.

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