What is a Will?
A Will is a legal document that records how you want your assets to be distributed after your death and your wishes concerning the care of any minor children. There are strict rules about how your Will should be drawn up and how it should be signed, in order for it to be valid.
Why do I need to make a Will?
Making a Will gives you control over your “estate” and allows you to decide how it will be distributed after your death. Your estate comprises all your property, shares, savings, and investments as well as your personal belongings, artwork, family heirlooms and digital assets. You will also need to consider insurance policies and pensions at the same time. It is worth taking advice on digital assets you may own too. If you own a business, we can help you to ensure the smooth transition of those interests by ensuring that your will does not conflict with how the business intends to deal with succession issues.
A Will ensures that your estate is divided up and shared according to your wishes and gives you and the beneficiaries certainty about what will happen.
A Will also enables you to provide for efficient tax planning.
If you prefer, a Will also allows you to leave your estate, or part of it, to your favoured charity instead. You can also record your funeral wishes.
Everyone should make a Will, but it is even more important to do so if you have children under the age of 18.
A Will lets you provide for their care. You may need to name someone to act as their legal guardian to look after them and help manage their financial affairs after you have gone. You may want to set up a trust for their benefit to save for their education or for their use once they are older.
If there are children in your family who are not biologically yours, such as step children or children who are to be borne of a surrogacy arrangement, you may have to make special provision for them If you have children from a previous marriage or relationship, even if they are adults, your Will would benefit from advice as to how their interests can be balanced with those of a new partner.
It will be necessary in your Will to name “executors”. These are the people you appoint to carry out your wishes after your death. There can be one or more executors. They should be people you trust, such as a family member or friend or a professional. Many people choose to appoint one executor who is a relation or friend and knows the family, along with a second executor who is a professional, familiar with financial matters.
The role of executor carries much responsibility and potential liability if the duties are not carried out carefully. It is worth seeking advice if you have been appointed as executor for your own protection. Wills are not always easy to read as technical language needs to be used and if distributions are made incorrectly or if tax matters are not regularised correctly then executors can be held personally liable. For more information see Probate and Estate Administration.
Making a legally valid Will is the best way to protect your estate and provide certainty for you and your family. You will know exactly who will inherit what. It will be clear how your estate is to be distributed, thus avoiding potential arguments between family members, after your death, over your assets and your possessions.
If you don’t make a Will, then you have no say in what happens to your estate after your death. Instead, it will be divided up according to predetermined rules of intestacy. This means that your estate may not necessarily be divided between the people you wanted to inherit and may not pass in a tax efficient way.
Where a person dies without a Will, they are called an “intestate person”. In those situations, the estate of the intestate is divided up according to the rules of intestacy.
Only married or civil partners and relatives can inherit under the intestacy rules. This means that cohabitants, (including those known colloquially as “common law spouses”) even if they have lived together for decades and have children together, are excluded and will inherit nothing on the death of an intestate person. Step children and former spouses will also inherit nothing. If a cohabitant is looking to establish rights some other way then they will need to take specialist advice and we would be pleased to assist.
The rules of intestacy specify a rigid order of who can benefit from the estate of an intestate person. The order is:
1. Spouse or civil partner
Uncles and aunts
The highest up the list will take priority however they do not necessarily receive the entire estate. For example, if the intestate person dies leaving a surviving spouse and children, the surviving spouse will receive the first £250,000, as well as all their possessions. Of the remaining value over and above £250,000, the spouse will be entitled to in half, and the rest will be split between the intestate person’s children (blood or adopted but not step) (or their grandchildren if the children have already died).
Sorting out the estate of an intestate person is usually more complicated than an estate where there is a Will and therefore more expensive than that of someone who has made a Will. This is because it is not always clear what assets the intestate person held, or because there may be complicated family relationships which make distributing the estate under the intestacy rules difficult.
Wills can be disputed on various grounds including lack of testamentary capacity, undue influence or coercion, lack of knowledge and approval, lack of valid execution and fraud and forgery. The best way to ensure that your will is not contested after your death is to have it drawn up by a specialist solicitor. We would be pleased to assist. For more information on contentious probate see trust and probate litigation.
The provisions of a Will can also be contested if it fails to provide for a beneficiary who is financially dependant on the deceased, such as a spouse, civil partner, child and sometimes a former spouse, former civil partner or cohabitee. If you think that someone might want to make a claim after your death it is sensible to address this when drafting your Will. For further information see inheritance claims for financial provision.
“Domicile” describes the country that you treat as your permanent home, or live in and have a substantial connection with. It may be different from your country of origin. It is important because whether or not you are domiciled in England & Wales can have an impact on whether inheritance tax is paid on your estate or not.
The definition of domicile may be different in tax cases from divorce jurisdiction cases, so it is essential to obtain specialist advice.
If you have assets abroad you will need to take advice when drawing up your Will so that you can avoid costly legal expenses in the administration of your estate. Some countries have forced heirship rules and trying to impose English law on foreign assets such as properties, can lead to disputes between different jurisdictions. This would make the administration of your estate both costly and time consuming. This can all be avoided by dealing with the matter in your Will.
You should always update your Will when
You get married or enter into a civil partnership, as your existing Will is automatically cancelled by these events (unless you have made special provision in your Will)
You get a divorce or dissolution of civil partnership. Indeed you should make a new Will even if you are thinking of getting a divorce or dissolution, as you may no longer want your spouse or civil partner to receive the same benefits once you are separated. Even once you are divorced, although your former spouse will not inherit from your Will, they may be considered by law as the person entitled to deal with your estate on behalf of your minor children if they are the legal guardian. If you would like to avoid your former ex from having control over your assets then you should get your Will reviewed to ensure this will not happen.
You have children whether by birth, adoption or surrogacy arrangement. Indeed even if there are other children in your family such as nieces, nephews, or grandchildren, to whom you would like to, leave something.
You have bought a new property or have recently inherited significant assets.
You should store your Will somewhere safe – with your solicitor or with your bank. Do not attach anything to the original Will with a paperclip or staple as this may raise questions about whether the Will is missing any attachments. You should make sure that your executors know where the original Will is stored.
Why do I need a solicitor and why Dawson Cornwell?
Thinking you can save money by using online DIY Forms or unregulated Will Writers is highly risky. Making your Will may be the most important financial thing you ever do, so it’s crucial to get it right.
The rules about what is or is not a valid Will are notoriously strict. Most people are not aware that even minor stains or incorrect spellings in a Will can have an impact on distribution or render it void. Small differences in the wording of gifts can produce quite different results. If a Will turns out not to be legally valid, the estate will be divided up according to the Intestacy rules, and your wishes will be ignored. If part of a Will is considered to be invalid then there may be a partial intestacy.
The benefits of using a properly trained and regulated solicitor are many. We have years of experience in drawing up Wills. We will advise you on inheritance tax planning consequences and wealth protection and how to preserve monies down your blood line. We will guide you through making decisions about what your Will should say so that you understand all relevant options open to you together with their pros and cons, so that you can make the best choices to suit you. We will ensure that your Will is validly drawn up, complies with the formalities of the Wills Act 1837 and accurately sets out your wishes so that the interests of your family and loved ones are protected.
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