Making a Will is one of the most important documents you will create in your lifetime. Despite this, 6 in 10 adults in the UK are without a Will. There is a lot of confusion around Wills including what should be included in a Will and whether you can write one yourself.
With the news of the extension to being able to witness wills on video, now feels like a good time to remind you why Estate Planning is crucial!
Ashleigh Kelly, Associate & Chartered Legal Executive in our Wills and Probate team, answers these important Q&As to help you get started on making your Will.
What is the difference between a Will and an estate plan?
A Will is just one single element of an ‘estate plan’, albeit a major one. Everyone knows how important a Will is and that it will dictate how your Estate is distributed after you’ve gone, ensuring that your wishes are carried out and that your loved ones will benefit.
However, a Will only speaks from death and it is also important to consider what would happen during lifetime should you lose capacity and be unable to manage your own affairs. This is where a Lasting Power of Attorney would come into play and would be invaluable. Making a Lasting Power of Attorney allows a person to appoint people that they trust implicitly to manage their affairs should they be unable to in the future, giving peace of mind to both the donor and their attorneys. Having a Lasting Power of Attorney in place makes life much easier for the family and loved ones of the donor as they are appointed and recognised legally and can help as they would wish.
For Business Owners
Another element of a comprehensive estate plan, for people who run a business, would be for them to also make a business Lasting Power of Attorney. This would be separate to their own personal Power of Attorney and would appoint people to step into their shoes should they be taken ill or become mentally incapable, allowing them to make decisions, manage payroll etc. to keep the business running on a day to day basis.
Inheritance Tax
Inheritance tax planning is a major part of an Estate Plan – people should work with their legal advisors and accounts to ascertain the potential tax liability on their Estate on death, and so that they understand the various exemptions and reliefs available to them. Planning can be put in place to maximise these allowances, to ensure that the Estate and the Testator’s Will (the person whose will it is) is structured in such a way that is beneficial for tax purposes. This can involve a Trust either set up during lifetime or via the Will.
Family and Future Generations
Finally, protection of assets for family and future generations is also an element of an Estate Plan which is a concern for many people, should they have a slightly more complex situation. For example, if the parties have been married before and/or have children from previous relationships, or if they are looking to the future and are worried about the cost of long-term care. Many people want to make sure that their family and loved ones are provided for after they are gone, and Trusts can be set up in a person’s Will to ring-fence and protect assets for the benefit of future generations.
Seeking specialist legal advice from a qualified Wills, Trusts and Probate lawyer can ensure that you have everything in place for the future, to protect and provide for your loved ones.
Can I write my Will myself?
A homemade Will can be valid if the necessary testamentary requirements are met. We would, however, strongly advise against making a Will yourself and would urge people to instead take professional advice. Often, issues with a Will are only discovered when you are no longer here, causing upset, delay and expense to your family and loved ones. Having a Will drawn up by a legal professional provides peace of mind, ensures that the document will be legally binding and that your wishes are carried out.
What needs to be in a Will?
The person making a Will, ‘The Testator’, can appoint Executors and Trustees who would be responsible for the administration of the Estate, including:
- Valuing the Estate after death
- Applying for Probate
- Gathering in assets
- Settling any outstanding expenses and liabilities
- Distributing the net Estate under the terms of the Will
They would also then take on the role of administering any Trusts contained in the Will. For example, if a beneficiary is under the age of 18 (or the age that the Testator has specified), the Trustees would hold and invest the monies due, with the ability to pay income and advance capital for education and maintenance purposes.
When making a Will, a parent can appoint guardians of any children who are under 18 at the date of death, allowing them to express their wish as to who should be responsible for looking after their children should the worst happen.
Upon marriage, a Will would be revoked, and so a clause can be inserted into the Will which states that the Will is made ‘in contemplation’ of that marriage taking place
A Will can include specific legacies of items to be left to various people, as well as a fixed sum of money left to certain individuals, organisations and charities. Many charities rely on the generous donations left to them in Wills.
The Will can then also distribute the remainder of the Estate, the residue, proportionately amongst the desired beneficiaries, with provision being made for gifts passing over to issue or alternative beneficiaries should the initial recipient die before the Testator of said Will.
A well-drafted Will serves to avoid the strict interpretation of the rules of intestacy (when a person dies without a Will and the estate is shared out according to certain rules) which can often be outdated and against the Testator’s wishes.
What should not go in a Will?
It is important to note that a Will becomes a public document once Probate is granted. As such, Testators should avoid including anything in a Will which they would not wish to become public knowledge. Once lodged at the Probate Registry, anybody can request a copy of the Will for their information and reference.
Wills can be updated as and when necessary as long as the Testator has the capacity to do so. It is recommended that a Will should be reviewed regularly, every 3-5 years or so, or as circumstances change.
Is a handwritten Will legal?
A Will can be handwritten and valid as long as it complies with the necessary testamentary requirements, being signed by the Testator, dated and witnessed by two independent witnesses.
Handwritten Wills, however, are often poorly drafted and many issues can arise in relation to the proper signing of the Will or amendments made to the content of the Will either before or after it is signed.
The validity of handwritten and DIY Wills is often questioned after death and lengthy legal battles can then ensue, causing distress, upset and often significant cost to the family. Find out more: The Complete Guide To Contesting A Will
Speak with an expert
Your Will is an extremely important document and should be drawn up carefully to ensure it meets all the necessary requirements. To guarantee your Will is legally binding, we strongly recommend speaking with an experienced solicitor who can help draft and store your Will.
To speak with us today, call 0161 969 3131 or fill in our contact form and one of the team will be in touch.