Making a will allows you to exert control over what happens to your assets after you die. In addition to specifying who will benefit from your estate, the will also enables you to make inheritance decisions fully informed of the taxation and related implications of your final will.
Dying without a will leaves your estate subject to the intestacy rules, which will determine who benefits from your estate.
Alongside this, if there is no will then you could be paying the maximum Inheritance Tax on your estate which can dilute your assets for your beneficiaries.
How to make a will
There are different ways open to you when making a will.
Writing your own ‘Do It Yourself Last will and Testament’ is one option. This route will require you to ensure you meet the requirements to be deemed valid. Issues with the validity of your will may otherwise arise after your death.
The most common and risk-averse approach to making a will is to use a solicitor.
What you need to consider when making a will
However you decide to approach making your will, areas you should be clear on include:
Identify what you wish to leave in your will. This may include anything you own in the UK or overseas; property, savings, investments, cars, antiques, pension, furniture and any household items to name a few. Depending on the items, you may wish to obtain a valuation on anything of high value.
It’s also worth thinking about any debts which will need to be paid off upon your death such as a mortgage or items purchased on credit.
Consider who you wish your personal items to be distributed to: This may be family, friends, organisations or particular charities whom you wish to make a gift to, pass on particular items or divide your Estate financially. At this stage, it’s worth considering if any of your beneficiaries may die before yourself, so you may consider including a caveat to specify how their share is re-allocated.
Bear in mind that if your beneficiary is under 18 years of age when you die, then you may need to make provision for someone to be their Legal Guardian, so they are responsible for ensuring that they receive their share at a particular age, as outlined in the will.
If you are bequeathing to a step-child then also ensure they are named in the will as the law doesn’t automatically include these as ‘children’.
What’s your family household? For example if there are step-children, you may wish to speak with your Solicitor at the same time as writing your will and find out about Trusts. This may be useful if you are in a second marriage or with someone who has children, or you have children yourself. It ensures that upon your death, your partner and vice versa still receives income and can reside in the property upon their passing away. Then your will is still followed so any named children are left your bequeathed items stated in your will rather than that of the deceased.
Also bear in mind last year’s changes to the Inheritance Tax Law, as you may wish to consider naming gifts in your will which will minimise the tax you pay, taking advice from your Solicitor .
Funeral arrangements: Some people may decide to include particulars about their funeral in their will; buried or cremated?, particular songs or how it is to be paid for.
Executors: Choose who will be the Executor of your will and you can appoint one or more people to take on this role. The Executor(s) will be responsible for ensuring that your wishes outlined in your will are fulfilled. You may ensure one Executor is younger than yourself or alternatively you may appoint a solicitor to take on this duty ,which may be chargeable.
Ensure your will is legally valid: Your will must be legally valid to minimise any opportunities for it to be contested. For instance, claims can be made over the witness signatures, if you are deemed not to have mental capacity or have been under any duress when making your will. This is even more important for DIY wills to ensure you are following the basic legal compliance of the Will Acts 1837.
Storing your will: Maintain a copy of your will perhaps with your Solicitor, at your bank or at home and ensure someone you trust knows where it is. In addition, it’s worth keeping all off your associated paperwork together or in one place, so it’s transparent to where key documents can be located i.e. insurance documents, pension, birth certificates.
When writing your will, it’s also good to be mindful of how Inheritance Tax works which your Solicitor can provide advice about as it’s a complicated process. There could be cost benefits to consider both whilst you are still living and to include your will for your beneficiaries; tax exemptions or tax relief for a charity, according to the value of your Estate, the size and type of gift, who the recipient is and the timing to when it was given before your death.
Updating your will
Once you have made your will, it is sensible to review it on a regular basis, usually every two years or in response to a life event such as a divorce or birth of a child, to make sure it remains current and reflective of your wishes. Family circumstances may change, your financial position may change, the law may change – impacting how your estate will be valued and managed and how your loved ones will benefit from your wealth.
Take advice from a solicitor to understand the implications of any changes and how these can be put into place.
If the change is small, known as ‘codicils’ (testamentary document), you will need to ensure the changes are made by witnesses and to take legal advice so it’s valid as there are certain rules that you can’t simply make changes directly to your original will. If it’s major, then you may be advised to write a new will.
Why take legal advice when making a will
Taking legal advice when making a will is the most effective and legally-certain way to ensure your estate is distributed as you wish. With legal guidance you can be assured your will will meet the requirements to make it valid.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
