Reasons for making a Will

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Why you should make a Will

There are plenty of things which can wait until tomorrow, but making a Will should not be one of them.

You may have missed recent publicity about making a Will, but the information you need is close at hand. If you make a will you can decide exactly what happens to your money and property, your “estate.” If you die without a Will the law sets out what happens to your estate, and you may not like it. If you die without a Will your estate is subject to the “intestacy rules.”

There is a balanced article on the website on the Government website. It points to particular circumstances in which not having a Will may leave those close to you in difficulty. It wisely tells us:

“If any of the following circumstances apply to you, the intestacy rules may not cater for your situation in the way that you would wish:

  • You are living together but are not legally married or in a civil partnership but wish your partner to inherit some or all of your estate.
  • You are legally married or in a civil partnership and have children and you wish your spouse/civil partner to inherit all of your estate.
  • You have no living relatives and wish to leave your estate to your friends or to a charity (the Crown may take your estate if you die leaving no will and no surviving relatives).
  • You are legally married or in a civil partnership and you don’t wish your spouse/civil partner to inherit anything.
  • You are legally married or in a civil partnership but have no children.
  • You are legally married or are in a civil partnership and have children from a previous relationship and you wish to ensure that your children receive something from your estate.
  • You have dependant relatives e.g. children under 18, elderly relatives or relatives with a disability who have special needs and you want to make sure that they are looked after and provided for. (If you make a will you can appoint guardians to look after your children and set up trusts in your will to provide for dependants.
  • Your estate is large and may be liable for Inheritance Tax and you may wish to make arrangements for tax planning.”

The intestacy rules are explained in a simplified form. One major point is for people living together but are not married or civil partners. A civil partner is someone who was in a registered civil partnership with the deceased when he or she died. It does not include people simply living together as unmarried partners or as ‘common law husband and wife’. If this is your situation then it is time for serious thought.

The guidance goes on to explain how to make a Will:

“There are several options:

  • See a solicitor
  • See a professional will writer
  • Do it yourself using a pre-printed will form available from stationers
  • Do it yourself using a sheet of plain paper

Which is best for me?

That is for you to decide, but before doing it yourself, please bear in mind the option of seeking professional advice. A solicitor or professional will writer should be able to advise you on the best way to draw up your will so that it properly reflects what you want, and most importantly that it is valid. They can also help you with inheritance tax planning and setting up trusts. Doing it yourself may be fine for you, but if you make a mistake, it can be costly and distressing for your beneficiaries, especially if your will turns out not to be valid.

Can I change my will?

Yes you can and it is advisable that you review your will regularly to ensure that it still meets your requirements as your circumstances change, otherwise problems or complications can arise.

Example:

Peter makes a will in 1999. He is divorced with a stepson. In the will he makes specific gifts of everything in his estate. At this time, he lives in rented accommodation and is employed as an electrician. In 2002 he starts his own business which becomes successful and by 2004 he is able to buy his own property and holds shares in various companies besides his own.

He realises that he should change his will to reflect his new circumstances, but dies before he has a chance. The specific gifts mentioned in his will are dealt with in accordance with his wishes, but because some of his estate is not specifically covered by the will i.e. the house and business, they will pass under the intestacy rules. Under the intestacy rules, Peter’s 89-year-old mother inherits his house and business, which is not what Peter would have wanted. He always wanted his stepson to inherit his house and the business to go to his cousin Paul.

In order for any alterations to be valid, you will need to make another will or if the changes are relatively small, you can make a codicil, which forms part of your will (a codicil must be signed and witnessed in the same way as a will). A codicil is a document that makes changes to a will. A codicil does not usually revoke the will but is read in conjunction with the will. A codicil is drawn up and executed in the same way as a will.

It is possible to draw up your will to cover possible future events (such as a beneficiary dying before you, or to make gifts to children or grandchildren born after the date of the will) but you should get advice on such matters as they are not straightforward and will cause problems if not properly worded.

WARNING: Getting married, or entering into a civil partnership after your will is made will generally revoke (cancel) it unless the will says it will not. Divorce or dissolution of civil partnership also affects your will, but does not revoke it. If you divorce or dissolve your civil partnership after your will is made, any reference to your former spouse or civil partner will be treated as if he or she had died on the day that the decree absolute or final dissolution order was made. You should seek legal advice in those circumstances.

Example

Mike and John have been a couple for 10 years. They made wills five years ago leaving their estates to each other. Mike is divorced and has two children and John has a brother.

In early 2006, they enter into a Civil Partnership. Later that year, Mike dies. Both their wills were revoked by the Civil Partnership, and even though his will still reflected his wishes, Mike’s estate passes under the intestacy rules. As his estate exceeds the amount which can be inherited by his surviving civil partner, his two children share his estate with John.

Can I cancel my will?

Yes, this is known as revoking your will. You may revoke your will at any time, by destroying it, or by making another will cancelling all previous wills.

Where should I keep my will?

Your will may not be required for many years after you make it so it is essential that it is stored safely and that it can be found after your death.

The main storage providers are:

  • Solicitors (a charge may be made)
  • Banks (charges apply) (WARNING: do not store your will in your safety deposit box. The box can’t be opened until Probate is granted and Probate can’t be granted without the original will)
  • The Principal Registry of the Family Division (PRFD) (You can deposit your will with the PRFD through any Probate Registry in England and Wales (£15 one-off fee payable)
  • Keep it yourself (but make sure your executors know where to find it).”

Some key points to remember:

  • Be aware of what will happen to your money and possessions if you die without leaving a will. If the provisions on intestacy are not what you want, make a will.
  • Do consider taking legal advice before ‘doing-it-yourself’. Mistakes can cause real difficulties for your loved ones and you will not be there to put things right.
  • If you use an internet site to help you make your will, ensure that it relates to the law where you live.
  • Review your will from time to time to ensure it still reflects your wishes and caters for your current circumstances.
  • Do not attempt to change your will by simply altering it or writing on it.
  • Ensure that your will is kept somewhere safe, and that your executor(s) know where to find it.