How to Make a Will
The best way of making a Will is to come and talk to us about it. We do however make Wills for many people who we never meet and who live in any part of the world.
In straightforward cases we will be able to prepare a Will for you if you let us have your answers to our Wills Questionnaire.
A Will is a very personal document; what matters is that you feel comfortable with it.
We suggest you read the following notes to help you think through the various points you need to consider when making a Will.
A legacy is a gift of a particular sum of money or a gift of a particular thing to a particular person or charity.
When an Estate is administered the legacies are paid first; so, the more you leave by way of legacies, the less will be left for your main beneficiaries.
Legacies are traditionally expressed to be net of tax, so that the Estate pays any tax attributable to the legacy.
Everyone, but particularly a child, is usually delighted to receive even a token gift under a Will. Sometimes making a gift to grandchildren can in a modest way help pass money to their generation, by-passing your children’s own generation.
You may wish to benefit a charity with a gift in your Will. If so, please try to identify the precise charity as accurately as possible.
Often, and particularly in harmonious families, people choose to say nothing in their Will about how their personal effects should be distributed; they either leave it to the good judgment of the Executors to deal with or leave an informal note in which they make their wishes known. This is not binding but your Executors will be very likely to give effect to such a note. We suggest a copy of the note is kept with the copy of your Will.
Something that is not obviously a legacy, but is treated as one, is a provision in a Will by which you may allow someone, a partner perhaps, to carry on living in your home after your death on the basis that after a certain period of time, or on their death, the property will be sold and distributed as part of your main Estate. You will need to discuss the detailed provisions for this with us.
Your main Estate
This is sometimes called your ‘Residuary Estate’ which means the assets which are left after any legacies have been paid and and debts, such as funeral costs, have been settled.
A Basic Family Will is one where a couple decide
- to leave everything to the survivor of them; and
- when the second one of them dies, to leave everything to their children; but
- with a provision that if one or more of the children dies before their parents, then that child’s share should pass to the deceased child’s own children.
We call this last provision a Grandchild Clause. Most people wish to include one because they think that if one of their own children dies then their grandchildren by that child are likely to be in need. Other people find it hard to make potential provision for grandchildren who have not yet been born. We can talk this through with you.
The art of making a good Will involves considering how you would wish to see your Estate distributed if any of the persons you would like to benefit dies before you do. This can be a miserable exercise but it is usually only necessary to contemplate a limited number of untimely deaths.
Someone who makes a Will is under a duty to consider all legitimate claims that might be brought against their Estate after their death. See our notes on Inheritance Act claims.
If you are married but separated, you need to consider if you should make any provision in your Will for your spouse. You may decide you do not need to do so because in the event of your death your spouse will be adequately provided for anyway, perhaps because there is jointly owned property that will pass to them or they will benefit under your pension scheme. It may be sensible to leave a Note with your Will to explain the thinking behind what you say in your Will. We can prepare this for you.
If there is a financial settlement in divorce proceedings in which a spouse’s personal claim for maintenance is dismissed, it is usual to also dismiss their right to make a claim under the Inheritance Act. This means you can then make no provision for them in your Will and they will have no claim against your Estate.
If you think that Inheritance Tax may be payable on your death (as it may be if the value of your estate at the time of your death exceeds the Inheritance Tax threshold which at present is £325,000) then you may want to ask us to advise you about making a Will that is designed to reduce the potential tax liability.
This is a complex subject and we can give you more advice about it. We may suggest you also speak to an accountant. Changes in legislation in recent years have reduced the scope for doing so.
Executors and Trustees
Your Executors are the people who will administer your Estate for you (ie gather in your assets and pay off any debts) and will then ensure that the terms of your Will are carried into effect. You need to appoint trustworthy and reliable Executors.
We recommend that you:
- either, appoint one Executor but name a substitute who will act if your first choice is unwilling or unable to do so; perhaps because he has died before you or has moved to live abroad;
- or, appoint at least two Executors.
You may appoint up to four Executors but this can then make the administration of your Estate a little cumbersome.
Devereux & Co is happy to act either as your sole Executor or jointly with the other Executors that you wish to appoint. Good reasons for appointing a professional Executor,such as a Solicitor, include:
- your Estate is complex; or
- you do not wish to burden family members with the role; or
- you think it may be desirable to have a neutral Executor to ‘hold the ring’ or be the 'honest broker’ if there may be disagreements or difficulties in the family after your death.
You do not have to obtain the permission of your Executors before appointing them in your Will but it would usually be sensible and polite to do so. Your Executors may decline the role after your death and may ‘renounce Probate’.
Confusingly, in your Will it is usual to also appoint Trustees. Usually, though not always, the same people are appointed to act both as Executors and as Trustees. It is necessary to have Trustees if potentially any part of your Estate cannot be distributed immediately to a beneficiary. This usually arises because the beneficiary is too young to inherit. The relevant funds will then need to be held by your Trustees until the time comes when they can be distributed.
We routinely draft Wills so as to include a standard set of trust provisions. These give your Trustees powers to invest the funds they are holding and include a discretionary power to enable them to release some funds ahead of time if, for example, this is desirable to help maintain or educate a child.
If you have children who are under 18 and if you have Parental Responsibility for them, you may appoint a Guardian or Guardians in your Will to care for your children until they are 18 if you die before they reach that age.However, if when you die the child's other natural parent is alive, then that parent will assume sole responsibility for the child and the appointment of a Guardian you have made in your Will will not take effect.
The Court may settle any dispute about who should care for a child. If you are concerned about the possibility that, if you die, the other parent, who has perhaps shown no interest in the child or is a poor parent, will take charge, then do discuss the position with us. We have drafted a provision you might wish to include in your Will to address this situation.
You do not have to obtain the permission of your Guardian before appointing them in your Will but it would usually be sensible and polite to do so. Your discussion might sensibly include how the children’s financial needs will be met. The standard set of trust provisions we have referred to above addresses this and we can explain the position to you more fully.
We think it is often, but not always, right to consider appointing both members of a couple as Guardians; they will then have equal authority with the children.
Disposal of your body and funeral arrangements
You should consider what arrangements you wish to see made for the disposal of your body. Ideally you should let your relatives know your wishes during your lifetime. You may wish to record your wishes in your Will; if you do so, it will be regarded merely as an expression of your wishes and will not be binding on your family or Executors.
Some people derive satisfaction in the later stages of their life from planning their own funeral. To others it is a matter of no consequence. If you do decide to make a note of your plans for your funeral, we suggest a copy of the note is kept with the copy of your Will.