0800 056 2015

Why make a will?

 

These days a lot of us are reluctant to talk about or plan for what will happen when we die, which is why two – thirds of the adult population have not written a Will. However, by making a properly drawn up Will, you can decide what will happen to your property and processions after your death, ensuring that your loved ones are provided for and that they have one less thing to worry about. Dying without a Will (or ‘Intestate’ to use the legal term) can mean a lot of anxiety for those left behind. The Law (under Administration of Estate Act) ensures that spouses and children are provided for where possible from whatever money, property or possessions a person leaves when they die (the ‘Estate’) once any debts have been settled but this can take time to sort out, during which your loved ones may not be sure where they stand. Also, it is worth knowing that if you and your partner are not married, the law views them as a friend and they may not receive any provision from your Estate, which could leave them in financial difficulty.

 

By making a Will, you can leave your property and other processions to whoever you choose (your ‘beneficiaries’), although, of course reasonable provision should be made for your dependants. Equally, you can specify how your assets are to be distributed. If you are an unmarried couple (whether it’s a same sex relationship), writing a Will ensures that your partner will be provided for after you have gone. If you are divorced, you can state in your Will whether you wish to leave anything to your former spouse. There are also a number of financial considerations that make writing a Will a sensible option. By making a Will, you can also choose the people who administer the terms of the Will (your Executors) and to give them useful administrative powers.

 

Finally, and perhaps most importantly, parents are advised to write a Will in order to state who legal guardianship of their children should transfer to in the event of their death. It is advisable to obtain the person in question’s permission, but by making your wishes clear, you can be sure that your children won’t be raised by someone you would never have chosen yourself. If you have made a Will you should review the content on a regular basis as changes in circumstances might mean that a Will made several years ago is no longer appropriate. If you have checked your Will is up to date, then you can be sure that your wishes will be carried out when the time comes. If you have not made a Will, then you may be leaving matters to chance, or to the Law.

 

What is intestacy?

 

If you die without a Will, or if your Will is invalid, you are deemed to have died intestate. The management of your estate is then placed in the hands of administrators who are appointed by the court and who are likely to be close members of your family. The administrators distribute your estate according to the results of intestacy.

 

The rules are complex, but broadly speaking the bulk of your estate will go to your spouse or, if none, to your children (whether or not they are adults) and, if none, to other blood relatives. The effects of the rules depends partly on the size of your estate. If your estate is large (currently more than £250,000) where there are children - even if they are adults) less than you expect may go to your spouse. So it is always prudent to have a valid Will rather than rely on the rules of intestacy.

 

It is also possible to die partially intestate. This occurs if you fail to deal with all of your property in your Will or if a beneficiary should predecease you.

 

Who should make a Will?

 

Every adult can and should make a Will. There are exceptions to the legal age of 18, such as if you are serving in the armed services, the legal age is 16.

 

The only necessary requirements are that you are of legal age and of sound mind. If there is a history of mental disorder or if an illness may affect the validity of your Will, we recommend seeking advice from a medical professional who will be able to determine at the time of signing your Will you was of sound mind and understood the contents of your Will.

 

If you are married, both you and your spouse should prepare Wills.  This is true even if marital assets are primary in the name of one spouse. Usually, you will wish to name your spouse as your main beneficiary and name an alternative beneficiary if he/she predeceases you.

 

If you are living with someone, but are not married and you want that person to benefit from your estate, it is particularly important to make a Will. This is so because the rules of intestancy make no provision for unmarried partners. If you were to die intestate, your partners would receive nothing from your estate.

 

How long is a Will Valid?

 

Once a Will has been prepared, it is valid until such time as it is revoked, which may occur for one of the following reasons:

 

  • By destruction by you (or in your presence and at your direction), combined with the intention to revoke.

 

  • By making a new Will that revokes the old one.

 

  • By marriage or remarriage, unless your Will expressly states that it is made in contemplation of that forthcoming marriage.

 

  • By entering into a civil partnership, unless your Will expressly states that it is made in contemplation of that forthcoming civil partnership.

 

When is it necessary to prepare a new Will?

 

You may need to revise you Will for any number of reasons. Common occasions for reviewing a Will include:

 

  • Changes in the family - a baby is born; a child becomes 18 (or perhaps some significant later age); or there is a death or disability. A gift in your Will to a beneficiary who has dies before you may 'lapse' (fail).

 

  • Marriage - automatically revokes a previous Will, unless your Will expressly states that it is made in contemplation of that forthcoming marriage. It is however, always better to prepare a new Will where possible.

 

  • Civil partnership - registering a Civil Partnership has the same effect as marriage.

 

  • Divorce - unlike marriage, a divorce does not revoke a Will, however, if your former spouse is named as a beneficiary, then upon divorce he/she will cease to be a beneficiary or receive a gift unless your Will expressly provides that the gift should still take effect if you divorce. If your former spouse is named as an executor, then upon divorce he/she will no longer be allowed to act as your executor or obtain probate of your Will. It is best practice to make a new Will after your divorce has been completed.

 

  • Dissolution of a Civil Partnership - the dissolution of a civil partnership has the same effect as a divorce.

 

  • Separation - does not have the effect on a Will which a divorce has, so it is best to review your circumstances as soon as possible after a separation.

 

  • Changes in financial circumstances - you may during your lifetime acquire assets which you would like to give to particular beneficiaries, or perhaps due to hard times your estate may have become insufficient to provide for the legacies you have made.

 

  • Changes in taxation - if your estate is large enough (or becomes large enough) to attract tax,  new taxes or reliefs or changes in the rates may call for changes in your Will.

 

  • Going to live abroad - you are likely to acquire assets abroad and your domicile may change.

 

In any case, it is alway a good idea to review your Will and circumstances on a regular basis to ensure that it is always up to date.

 

How do I make a Will?

 

There are several options available for making a Will: you can write your own, you can use a standard Will form from a reputable stationers, or you can consult an expert. You must, however, be at least 18 years of age and of sound mind (although there are special provisions for younger people serving in the armed forces).  In fact, if your Estate is at all complicated – for example, if you own a property abroad, or a business, or if your Estate could be liable for Inheritance Tax – then it may be best to use the services of WDS Associates or a similar qualified professional.

 

WDS Associates will be able to advise you not only on matters directly concerning your Will, but also on other action that might be appropriate to protect your assets for the eventual use of your beneficiaries. For example, they will be able to advise on ‘Power of Attorney’, which is when you give a person of your choosing the power to carry out certain decisions on your behalf should you become physically or mentally incapable of looking after yourself or your affairs. Proper action taken in advance can prevent the loss of family assets.

 

A Do- it- Yourself Will may not be a recognised as legally binding because it may not have been drawn up or witnessed properly. Others may also put a different interpretation on words you have used – this could lead to confusion or misunderstanding about your wishes. Using WDS Associates to draw up your Will ensures everything is clear and unambiguous.

 

WDS Associates will also be able to advise you about any aspects of your proposed Will that may cause a problem. For instance, they can advise against attaching unreasonable conditions to bequests, conditions that could be challenged in the courts.

 

WDS Associates will meet you at a convenient time, date and location to suit. The cost of writing up a Will can vary and will depend on how complicated your affairs may be.

 

Can I make my own Will?

 

Anyone can make their own Will, although there are a number of potential pitfalls in doing so. Ambiguous wording for example may cause a problem for your family when attempting to interpret your intentions or in some cases may even render a Will invalid.

 

There are also specific rules relating to the signature of the Will. It is certainly advisable therefore to seek advice from a specialist who will be able to ensure that your Will adequately reflects and achieves your wishes.

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Writing your own Will give some protection and if constructed properly, it should be accepted as legally binding. Completing a Will form is also possible and is generally safer than attempting to write your own Will; there are now various computer programs that will assist you in writing your own Will. However, if you want to be absolutely certain that your Will conveys your wishes properly, then it is best to seek proper advice from WDS Associates as there are various legal formalities that must be followed to make a Will valid.

 

What should be included in my Will?

 

When drawing up your Will, you should consider the following questions. Beneficiaries are the people and / or Charities to whom you will give all or part of your Estate. An Executor is the person(s) or Trustee Company who will make sure your instructions in the Will are carried out. Who will look after my children? You will need to appoint a guardian for any children aged under 18.

 

Do I want to leave anyone out of my Will? If you decide to exclude someone from your Will, it is best if you outline your reasons for doing so by writing a letter of Omission. Keep in mind that the Law expects you to make adequate provision for anyone you are legally responsible. If you don’t make provision the Court may order that provision must be made out of the Estate.

 

Do I want to impose any conditions on a beneficiary’s right to receive a gift? Some conditions are allowable, and some are not. For example, you can state that a minor cannot receive their benefit until the age of 25. However you cannot prohibit a spouse from remarrying, and you cannot prohibit a child from marrying someone of a certain race or religion. Such conditions will be ignored, because they are regarded as offending ‘public policy’.

 

What funeral arrangements do I want?

 

Will I authorise or prohibit the use of my body for scientific or medical research?

 

What do I want to happen if my beneficiaries die before or with me?

 

What assets and property should be included in my Will?

 

What don’t I need to include in my Will?

 

All jointly owned assets automatically pass to the other person on death. Life insurance policies can be paid into your Estate to be distributed as part of your Will, or they can be paid directly to the nominated person, depending on the arrangement made when you took out the policy and the insurance company’s requirements. Superannuation monies can be included in your Will, but the superannuation fund does not have to abide by your wishes. Normally, their priority is to benefit direct dependants, and they will do this independently of the Will process. As superannuation is often one of our most valuable assets, it is important to know what will happen to this payment when you die.

 

 

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