This article has been written for us by Sarah Budibent, a solicitor specialising in probate law.
Making a Will does not sound like fun, so it can easily end up being another job to put off for another day, like filling in your tax return and checking up on your pension.
Yet, most people would say that what happens to their family or their property after their death is hugely important to them and, without a Will, decisions about who will inherit and how much will be made according to fixed rules of law. The result may be far from what they would have wished or intended.
If you make a Will, you can decide exactly what you want done with your property after your death; you appoint personal representatives to carry out your wishes and guardians for your children; you can express wishes about the disposal of your body and you may also be able to save your beneficiaries from paying unnecessary tax.
Tackling these questions can give a welcome sense of security and satisfaction in fulfilling responsibilities to those we care for. This is likely to be even more important at times of upheaval in our lives, such as following separation, divorce, death or when developing new relationships and on re-marriage, when we are looking for some certainty regarding the future for ourselves and our children.
Using a Solicitor
Although it is possible to write your own Will, it is generally advisable to go to a solicitor, who will help you to clarify your own ideas and draw up a valid Will, making it less likely to be challenged after your death. Contesting a Will in Court is an expensive process, which would diminish the funds you want to pass on to the people who are important in your life. By comparison, solicitors’ charges for will writing are not high and, besides, should be weighed against the peace of mind you gain and the tax savings which may be made.
What is involved?
Your solicitor will need detailed information about your family and marital status and about everything you own, including property in the UK and abroad, cars, personal valuables, stocks and shares, bank accounts, insurance policies, business interests and pensions. Often, the solicitor will send you a questionnaire to help you to address everything.
Your Beneficiaries
The people or institutions to whom you want to leave your property are called beneficiaries. You may want to give some specific gifts, either of money or named items (e.g.jewellery) to friends, relatives, charities etc. These gifts are called legacies.
The Residue
The remainder of your estate, which is left over after all debts, funeral expenses and taxes have been paid, is called the residue. A Will always contains a gift of the residue because you don’t know in advance exactly what your estate will consist of. If you have a spouse or children, or both, you will probably want the residue to go mainly to them but you may wish to include a gift to other relatives, friends or a particular charity.
Guardians for children
If you have young children, you should think about appointing a guardian or guardians to take care of them if they might still be under 18 at your death. Any guardian should be carefully chosen and you should make sure that he or she is willing to act. If you are separated or divorced, you may wish to appoint a guardian to act jointly with your former partner to maintain some traditions or contact in your name and memory.
Your body
You may have a preference for burial or cremation or for a particular kind of funeral or wishes about the place of burial or disposal of ashes. You may carry a donor card and wish for your body to be made available for medical use. This can be stated in the will but since the will may not be read until some time after your death, it is best to inform close relatives.
Executors and Trustees
An executor is a person you choose and appoint in your Will as your personal representative to take charge of your estate, collect in assets, pay funeral expenses and debts and distribute specific legacies and residue according to your wishes. It is usually best to appoint at least two people in case the person chosen dies before you or is unable to act. If a Will creates trusts, e.g. where there are minor children or for tax-saving reasons, it should appoint trustees as well as executors, but usually the same people will do both jobs.
Execution of the Will
When you are happy that the Will that has been drafted for you fulfils your wishes, it must be dated and be signed by you in the presence of two witnesses, who then also sign and date the Will and write their names and addresses. This process is called execution. If these strict rules are not followed the Will is not valid.
Storage
Your Will should be kept in a safe place. Your solicitor may be able to offer storage in the firm’s strongroom or will be able to advise you on using a Bank or the Probate Registry for which a small fee is charged. You will be given a copy of the Will to keep at home for reference and it is best to inform your executor(s) and other close relatives where you store your personal papers, and where your original Will is being kept.
