We all know the importance of having a Will in place, yet almost half of the people in the UK do not have one. We understand that this can be a daunting experience and one where we need to consider life after we have passed on, but having a Will is a vital legal document to ensure your wishes are heard. It will be even more important for those with complex family situations, large estates or with specific requests. Hilary Hargreaves, Associate in our Wills, Probate and Estate Planning department here discusses the key considerations you should make when writing your Will.
Before you can decide who will become your beneficiaries in your Will, you should have a comprehensive list of the assets in your estate. You can then decide who will inherit and it will provide you with valuable information about the size of your estate and any Inheritance Tax (IHT) that could be payable.
We can discuss the current IHT regime including the various allowances that are available, such as the nil rate band and residential nil rate band, both of which are transferable. This is a complicated area of law, so it is vital you receive the right advice.
Your assets would include, but are not limited to, the following:
Once you know the assets that make up your estate and their value you can then decide how to split those amongst your friends, family or charities you support, known as your beneficiaries. Having control over the distribution of your estate is one of the key reasons why having a Will is important as it avoids you dying intestate. In this scenario, your estate would be divided based on intestacy laws, which may not be consistent with your wishes.
Your situation will determine how complex choosing your beneficiaries will be, for example you may have children from a previous relationship, you may have estranged family members or a particularly large family. If you are making certain gifts in your Will that could prove contentious following your death, we can discuss with you how to manage this and reduce the risk in the future.
At this stage, we will explain to you the various types of Will that are available and how they could support you in your particular situation. A Life Interest Trust Will could be compatible for your family circumstances; this type of Will is especially useful if you have children from a previous relationship as you can ring-fence certain assets for those children should you remarry at a later date.
If you wish a charitable organisation to be named as a beneficiary, you should include specific details relating to the charity, the gift you would like them to receive and we would also recommend that you notify the charity of your intentions.
When drafting your Will, you will need to be able to provide us with the name and contact details of the beneficiaries so that these can be included.
The Executor of your estate is the person who will apply for probate after your death, pay any expenses regarding your funeral and will distribute the contents according to your Will. You should always discuss this responsibility with the chosen person or people to ensure that they are willing to take on the task and have an accurate understanding of your wishes.
You can have one Executor; however, we would recommend you have at least two so that there are replacements to assist should one of them pass away before you, even though in this situation, we would advise you update your Will.
In some cases, it is extremely helpful to have a professional Executor and this is something that we can help with. This can be particularly useful if you have disputes within your family or beneficiaries that live abroad, for example.
As with your beneficiaries, we will need the name and contact details of the Executor(s).
There are clauses that you can include in your Will that specify what happens should a beneficiary pass away before you, for example.
You can also include clauses to exclude certain people from your Will. While this can lead to contention as and when this arises, there are ways to minimise this risk, for example, you could write a Letter of Wishes to accompany your Will which explains the reasons for their exclusion.
A Will is not purely to specify how your estate is to be divided but provides guardianship for your children should you pass away before they turn 18 years of age. You can choose one or more guardians; as with the Executors, you should discuss your choice with the appointed people before committing to your Will.
Any provisions made for minors under the age of 18 are held in Trust until they come of age. You can specify in your Will how the Trustees are to manage those finances, ensuring that any costs are covered, such as any education costs.
Your Executor can become a Trustee under your Will, which will automatically happen should this not be specified.
If you are a business owner or you are a shareholder, you should certainly consider the impact your death will have on the business and make the necessary provisions. Your Will can specify what will happen to your shares, how the articles of association should be updated and plan for the future succession.
You should ensure that your Will, any copies and supporting letters are stored safely and that your Executors are aware of their location.
While you can use online tools to complete your Will, it is recommended that legal advice is sought, particularly if you have a large estate or have had previous marriages. By using an experienced legal advisor, you can be confident that all eventualities have been considered and that you have chosen the right people to carry out your wishes.
The main issues that arise with Wills that are drafted without legal advice is that they are not executed properly, rendering them invalid. We can discuss with you the various ways that this could happen, and provide assistance where necessary, for example in providing an independent person to supervise the witnessing.
Where your Will may be contentious in any way, being able to show that you sought independent legal advice from qualified and experienced professionals could make it harder for any challenges in the future.
In addition to writing your Will, we would recommend you consider having Lasting Powers of Attorney (LPA) in place. These are important documents that essentially appoint someone of your choosing to manage your affairs if you are no longer able to or you wish to ask for help. There are two types of LPA you can have:
In the event that you lose mental capacity, for example if you have a stroke, are diagnosed with dementia or you have a serious incident, your attorney will be able to make these decisions for you. Without one, under a Property and Financial Affairs LPA, your loved ones would need to apply to the Court of Protection to become a Deputy; a long and costly process that could be avoided with an LPA.
We know that writing a Will is a big step, but we also understand how important your family is to you and that you will want to take every precaution to protect them in the future. To discuss writing your Will with Hilary or a member of our experienced and compassionate Wills, Probate and Estate Planning department, contact us today.
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.