None of us like to think about dying which might explain why nearly 60% of adults in the UK don’t have a will but if you die without a valid will in place, inheritance laws called the Rules Of Intestacy come in to play and will decide who is entitled to inherit what in relation to your estate. As this may not be inline with your assumptions or wishes, you may be wondering how to go about writing a will.
Whether you’re single, married, have children or not, writing a will is one of the most responsible things you can do in your lifetime and is the only way to ensure your estate is managed in keeping with your wishes when you die.
If you’re ready to take control of your affairs and put in place a plan to help those you love in the event of your death, we’ve put together some key things to consider before writing a will including: you need to make before writing a will including:
- Assets
- Debts
- Beneficiaries, Trustees and Guardians
- Executors
- Foreign Property
- Businesses
- Claims against your estate
- Digital Property
- Letter of Instruction
At Hattons Solicitors we have a dedicated team of solicitors experienced in wills and probate law. We can guide you through the process of making a will or help you if you are dealing with probate matters after the death of a loved one.
In this article we will take you through each of the points above in more detail before answering the questions we are most frequently asked about wills at the end of this article including when and how to write a will.
What Is A Will?
A will is a formal legal document that details how your estate will be managed and distributed in the event of your death. A will makes a person’s intentions and wishes clear surrounding important matters of their life such as dependents, accumulated wealth, businesses, property and trusts, including any gifts they want to pass on, as well as setting out their preferences for how their funeral is managed.
Wills must be signed by the will maker and two witnesses over the age of 18 who aren’t listed as beneficiaries or spouses of beneficiaries. Without this, your will is deemed invalid and your wishes may not be fulfilled.
Executors are the people who will manage your estate and it’s transition to its beneficiaries in line with your wishes. Many people choose to list their solicitor as one of their executors due to the often complex and stressful nature of the role.
Consider The Following Before Making Your Will
Consider Your Assets Before Writing A Will
Assets include property, cash, savings, shares, businesses you own and pensions. To understand what assets you have, make a list that brings all of these things together in one place, along with their value or estimated value for a great place to start before writing your will. Don’t forget to include joint assets where you are named too.
Consider Your Debts Before Writing A Will
Debts can include mortgages, loans and credit cards or any other money that you owe. Any outstanding debts at the time of your death will be deducted from the value of assets in your estate. The residual amount will be the total value of your estate that can be passed on in line with your wishes. It’s a good idea to put together a list of any outstanding debts before writing your will.
Consider Your Dependents Before Writing A Will
If people are financially dependent on you, for example your children or a partner that requires care, consider what financial needs they may have after your death if you would like to make a provision for this.
If you have young children, you will also need to consider who will look after your children’s welfare until they are 18 and therefore who will be named as guardians in your will. We recommend parents discuss this carefully with each other and with the named guardians to ensure they are in agreement to prevent any conflict arising in the event of your death.
In the event of minors being named as beneficiaries of a will, executors can act as trustees and will be required to manage the inheritance on behalf of the minor until they reach the age you specify they can inherit.
Consider Your Beneficiaries Before Writing A Will
A beneficiary is somebody that you choose and name in your will to inherit money, assets or responsibilities from you in the event of your death. You can name as many beneficiaries as you want to, including charities or businesses.
For many people beneficiaries will an easy consideration for their will – most choosing their spouse, partner and children but you should also take time to consider:
- Could your spouse remarry and disinherit your children?
- Can they cut out estranged children, and what rights do they have?
- Who should benefit if your spouse and children die together in an accident?
- What happens if your spouse has children from a previous relationship?
- The proportion of estate division between beneficiaries
- What you would like to do in the event of your beneficiary dying before your will being invoked.
When deciding how to split your estate, consider lifetime gifts that may have been shared, the needs of those likely to benefit such as disabilities, financial hardships, and of course your own feelings toward those who have been particularly supportive of you in your lifetime.
It’s good practice to leave a note somewhere safe (make sure you tell your executor where it is) If there is likely to be any questions regarding the division of your assets. This is a good way to explain your reasoning should you wish to, which might prevent disagreements or claims of unfairness between beneficiaries in the future.
Consider Your Executors Before Writing A Will
Executors are people that you name to be responsible for carrying out your wishes in line with your will in the event of your death. You can have up to four executors and they will be required to pay your outstanding debts including inheritance tax and distribute your remaining estate among your beneficiaries. This is an important and often complex role, so choosing people you can trust with this responsibility is key.
Consider Foreign Property Before Writing A Will
If you own a holiday property abroad, business premises or a second home in another country, you will need to consider if ‘forced heirship’ rules apply. In some countries, forced heirship states that you must leave your estate to a certain specific heir rather than to a named beneficiary of your choosing, as per the law in England and Wales. If foreign property is owned, you may need to write multiple wills that adhere to the rules of property ownership in the country it is located or you may be able to cover its management in a single will. Only a solicitor will be able to advise you on the best approach as it will be specific to your individual circumstances including number of and locations of properties owned.
Consider Businesses Owned Before Writing A Will
You should take professional advice on what will happen to your business, or your share in a business in order to decide if you will use your business interest to secure a future for your family, or ensure that you are mitigating your inheritance tax liability.
After your death, an interest in a business can qualify for either 50% or 100% relief from inheritance tax, known as Business Property Relief. If you are in a partnership you should also consider and share the partnership agreement with your solicitor to understand if there are restrictions on who can inherit your share or the business.
Consider Claims Against Your Estate Before Writing A Will
Unexpected claims against your estate can come from spouses and civil partners, former spouses and civil partners who have not remarried, cohabitees, children, those treated as children of the family, and others who have been maintained by you. Each of these may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975.
If there is anyone that is likely to make a claim against your estate when you die, you should discuss this with your solicitor before drafting your will as they can advise you on the best way to manage this with those involved to pre-empt and mitigate any challenges to your will in the event of your death, which could be upsetting to your family and named beneficiaries.
Consider Digital Footprints Before Writing A Will
When we think of wills, we tend to think of dividing up cash and property but as we increasingly play out our lives with the help of computers and the internet, we are all likely to have a large digital estate that also needs to be considered and properly accounted for in the event of our death.
Digital assets are likely to hold little cash value but may be sentiment rich or require sensitive handling including things such as; photographs, online blogs or diaries, online accounts such as emails, Paypal, or icloud storage, banking, social media profiles or online trading accounts.
Without telling your executors about these things in your will, providing access details and specifying how you want them handled, it will be incredibly hard to trace them and gain access in order to carry out your wishes in relation to your digital footprint.
Consider pulling together a list of digital assets, resources, profiles, accounts and their passwords that you would want dealt with or would make it easier for the executors of your estate to manage during probate.
Consider Writing A Letter Of Instruction
A Letter of Instruction has no legal value but can be an invaluable support for anyone involved in settling your affairs. You can use this document to outline an easy to understand layman’s explanation of your overall estate and wishes for your family and friends for things not covered by the will.
Common inclusions are: helpful information such as passwords or logins to accounts, the location of important documents, names and addresses of friends, colleagues or contacts that should be notified of your death, personal sentiments, thank yous, requests and thoughts that you wish to pass on.
It’s important to note that you should never store anything with your will, as it can make it invalid. So always store your letter of intent separately but make sure your executors know where it is so it can be passed on to the relevant people and make a note to update this regularly.
Who Can Make A Will
A Will can be made by any person over the age of 18 who has the ability (sometimes known as testamentary capacity) to understand:
- What a Will is and what it does.
- The extent of their estate that they are passing on to their beneficiaries.
- Understand and appreciate the moral and/or legal obligations that they may have to certain people.
- Have no disorder of the mind that alters their understanding of any of the above.
When To Make A Will
If you are an adult with any kind of assets or debts, you should strongly consider setting up and regularly reviewing your will. As the value of your estate will change throughout your life, it is important to revisit your will regularly, every 3-5 years, and particularly at key milestones in your life such as having children, getting married, divorced or coming into an inheritance to ensure it still accurately reflects your wishes.
Please note that wills are especially important for unmarried couples as without a legally recognised partnership like marriage or a civil partnership, you aren’t entitled to inherit anything if your partner dies, even if you have been together for a significant amount of time which can be a cause upset should this information come as a surprise in the event of a loved one’s death.
How To Write A Will
In theory, any of us can write a will in any way we want to as long as it is signed and witnessed correctly, but before you grab the nearest piece of paper and scribble down your wishes, you may want to consider the benefits of using a solicitor to draft your will. A Solicitor will ensure your will correctly stipulates your wishes and intentions without any unintended ambiguity that might make your will invalid or unenforceable – which is a real risk for the inexperienced will writers among us!
If you have a more complicated family set up including step children, are unmarried, have financial dependents outside of your immediate family, have business interests or own property or businesses abroad, estates valued over £325,000 for an individual or up to £650,000 for a married couple, you should instruct the services of a registered solicitor experienced in wills and probate to set out your wishes due to the potential complexity of ensuring your affairs are managed appropriately, legally and tax favourably.
Considerations When Drafting Your Will
However, when and why you choose to draft your will, it should meet the following criteria:
- Wills MUST be signed, dated and witnessed correctly. If not, your will is invalid.
- Ensure the spelling of the names of beneficiaries in your will are 100% accurate
- Destroy any old wills you may have when you create a new one or update it
- Be as specific as possible – use full names, not just first names or terms like husband or wife
- Tell your executor where your will is kept
- 40% Inheritance tax is applied to your estate when you die unless the value of your estate is below £325,000 or if everything above this threshold is left to your spouse, civil partner or charity. You can take steps with a financial advisor or tax planner before your death to ensure this is managed efficiently so as much of your accumulated worth can be passed to your beneficiaries as possible.
- Wills should be written using unambiguous language that can be interpreted without any confusion whilst providing the utmost clarity of the wishes of the testator.
- When considering your will, it is also worth considering setting up a Lasting Power of Attorney. This would mean that there is someone else legally appointed, who you have chosen, who could deal with personal and business matters on your behalf should you lose mental capacity in your lifetime.
In Conclusion
We hope this article has provided a simple overview of the key things you need to consider before writing a will in order to make sure your wishes regarding your estate and loved ones are carried out as you intend in the event of your death, and do not fall to the laws of intestate to decide.
If you have any questions, concerns or would like to discuss your options in relation to your will, estate planning or probate matters, please don’t hesitate to get in touch with the wills and probate team at Hattons on 01744 413170 or via our online contact form here.
Hattons Solicitors are based in St Helens Merseyside and have been providing efficient, affordable and high quality legal services to members of the public and the wider business community since 2001. Our professional excellence and quality of work is reinforced by our Law Society Lexcel Accreditation and membership to the Law Society and our friendly team will always listen to you and your needs before working with you to deliver the best approach that best meets your needs.
Posted on: 15/Jun/2020 Posted in: Family Law