Making a Will – All you Need to Know

Writing a Will isn’t something we like to think about, but that doesn’t mean it isn’t important. No matter what stage of life you are at, you should have an up-to-date Will written and ready just in case the worst happens. Having a Will in place makes a difficult time easier for your loved ones.

Can I Make a Will?
Before you start to create your Will, you must first check that you are eligible. To write a Will you must be:

• 18 or over
• Of sound mind (fully aware of the nature of the Will and the persons mentioned within it)
• Not being pressured into creating a Will by another person

Your Will must be in writing and signed by you in the presence of two witnesses. These cannot be family members or beneficiaries. They will also sign your Will to prove they were present at time of writing. The date should also be included.

Do I need to Write a Will?

By making a Will, you’ll ensure that your assets and possessions (known as your ‘estate’) are distributed fairly amongst your loved ones and any charities you wish to donate to, these are known as your ‘beneficiaries’.

Your estate includes:

• Property (both in the UK and overseas)
• Savings and Investments
• Insurance Funds
• Pension Funds
• Personal Possessions

If you die without a Will, your estate will be distributed according to the ‘rules of intestacy’.

You appoint executor(s) in the Will, so that you choose who deals with your estate when you die.

What are the Rules of Intestacy?
The rules of intestacy are set in place to ensure that, when someone dies without a Will, their estate is distributed to their close family. These also apply if a Will exists, but it is invalid or incomplete.

According to these rules, only your married or civil partner, or some other close relatives, can inherit.

If you have been married or in a civil partnership, but are now legally separated, your ex-partner cannot inherit. If your separation is informal, they are still eligible.

Cohabiting partners (a partner you live with but are not married/in a civil partnership with) have no automatic right to inherit, no matter how long you were together.

What is Inherited under the Rules of Intestacy?
If there is no Will, your estate will be shared between your spouse or civil partner and any/all surviving children, grandchildren, or great-grandchildren.

If the estate is worth less that £322,000 the spouse/civil partner will inherit the entire estate. If the estate which passes under the intestacy is valued at more than £322,000, the partner inherits:

• All personal property and belongings
• The first £322,000 of the estate
• Half the remaining estate (The other half will go to any children, in equal shares)

If there are no surviving children, grandchildren, or great-grandchildren, your spouse/civil partner will inherit the entire estate (with interest) from the date of death.

If there is no surviving spouse/civil partner or children, grandchildren or great grandchildren then the estate will go to any surviving parent(s), if none, to brothers and sisters in equal shares (if any have predeceased their share will go to their children), if none, to half brothers and sisters in equal shares (if any have predeceased their share will go to their children), if none, to any surviving grandparent(s), if none, to aunts and uncles in equal shares (if any have predeceased their share will go to their children), if none, to half aunts and uncles in equal shares (if any have predeceased their share will go to their children), if none, to the Crown.

Essentially, if you don’t have a will in place, you have very little control over who inherits your estate, and close family members, including stepchildren may receive nothing.

This is why writing a will is so important.

Writing a Will
It is recommended to work with a solicitor to create your Will if any of the following apply:

• You share a property with someone who is not your spouse or civil partner
• You have a dependant (such as a child or ill parent)
• You have property overseas
• You have an overseas business
• You do not live in the UK
• Several family members may make a claim on the Will

These factors will make creating a Will more complicated, meaning mistakes are more likely. Working with a solicitor from the very start saves you a lot of time and effort.

What to Include in a Will
Before you meet with a solicitor, it’s important to know what you want to include.

A Will covers much more than just the money in your bank account. Property, pensions, insurance policies, shares, and your savings all need to be included, with correct details throughout.

Consideration needs to be made as to how certain assets are held as this will determine whether they pass by the Will or whether they pass in another way; for example, some jointly held property may pass automatically to the other joint owner by the Law of Survivorship and pensions providers will generally decide who will inherit any remaining pension savings, although if beneficiaries have been nominated this will help them honour your wishes.

It isn’t just a list of numbers either. In your Will you need to include a list of beneficiaries (people you want to benefit from your Will) and what they will receive. Keep in mind that your beneficiaries may die before you do; yet another reason why you should keep your Will up to date.

You may also wish to leave money to charity, in which case you’ll need to include their full details too.

If you have any dependants, such as children under the age of 18, you need to outline who should take care of them if you die. This can be a partner, relative, or godparent. If you don’t do this, your family may face custody issues after your death.

You may also include any requests for your funeral in your Will. This can also be done separately in an Advance Funeral Wishes document if you’d prefer.

Finally, you should specify who will carry out your wishes as set out in your Will. These will be your ‘executors’.

You only need one executor for your Will, but it is recommended to have more than one in case one dies. Due to the large amount of paperwork and processes involved, a second or third executor can make it less stressful. You cannot have more than 4 executors.

Executors administer the estate and carry out the wishes in your Will. However, if your Will creates any ongoing trusts, for example, money to be held for a child until they are legally entitled to manage their affairs at 18 years or an age specified by the Will, then you will need to consider who you wish to appoint as trustees to look after that money. These can be the same people as the executors or you can appoint different people.

The most common choices for executors are relatives, friends, solicitors, accountants, a public trustee, or banks. If you have a large and complicated estate, a professional with experience will be best at handling such a large responsibility. You should also keep in mind that your chosen executor may refuse the appointment, as is their right.

What to do with your Will after it is Written
Once it has been correctly signed, with two independent witnesses present and signing at the same time as the executor, and the Will has been dated, it is complete.

Next, you need to choose somewhere safe to keep your Will. If you drew up your Will with a solicitor, you may leave your Will with them, and they will give you a copy.

It is not recommended to leave your Will in a safety deposit box. These boxes cannot be accessed by your executor without the legal permission your Will provides.

The government also has a Probate Service, which is another way to keep your Will safe.

When to Update a Will
It’s important to keep your Will updated, as any changes in your personal or financial situation can make the document or parts of it invalid or mean that the Will no longer does what you want it to. These changes include:

• Getting married or entering a civil partnership (which will automatically cancel an existing Will)
• Getting divorced or separating from your legal partner
• Buying an expensive asset (such as a house or car)

Even if there are no major changes in your life, you should check your Will every five years to ensure that all the information is still correct, and the Will still does what you want with your assets.

Help with Writing a Will
If you know you need to create a Will, but aren’t sure how, please get in touch with us for a consultation. We can guide you through the process, and make sure that the completed Will is 100% accurate and legally binding.

Call us on 01942 206060 or email us on mbh@wigansolicitors.com to make an appointment.

FAQs

Can a Family Member be a Witness to a Will?
No, your witnesses must not be an executor or beneficiary named in the Will; they must not be related to you or to any of the beneficiaries named in the Will by blood, marriage, or civil partnership. They can be a friend or neighbour who is over 18, preferably one you know well.

Can an Executor also be a Beneficiary?
Yes, it is legal and common to name the same person as an executor and a beneficiary in your Will.

If I write a Will does it mean that my executors will not need to take out a Grant from the Probate Registry?
No, whether a Grant of Probate is required generally depends on the assets in an estate. When the person who died owned property or significant assets in their sole name a Grant of Probate is likely to be required or a particular asset holder i.e. bank or other financial institution may require a Grant of Probate before they will release the asset.

Can an Attorney appointed by a Power of Attorney change a Will?
No, your attorney cannot make changes to your Will. However, they can request to see a copy of your Will to ensure the decisions they make are in your best interest.