Making a Will – What you need to know

A Will is one of the most important documents you can own, yet nearly half of over 55’s living in the UK don’t own one. It may seem very far away for many of us, but one day someone will be left with the stress of sorting out your estate after you die.

They will be responsible for your property, finances, bills, funeral and even your pets after you have gone. During this process, all you we have worked hard for, your possessions, property, and finances may be all at jeopardy if you do not have a Will.

This guide will help you understand what a Will is, why you should have one written and the repercussions if you don’t own a Will.

What is a Will?

A Will is a formal document that contains specific instructions by you to an ‘executor’ who will oversee your estate when you pass away. The executor will make sure the decisions you have made in your Will are actioned. This includes who gets your property and finances, and even what happens at your funeral. Therefore, a Will is important to protect your family’s future.

What Can a Will Do?

You can leave as much or as little as you like of what you own in a Will and decides who takes possession of what. This means you are deciding where your estate goes, not the Crown, who will administer your estate based on the rules of intestacy.  

Making a Will can ensure the following:

– Protect your family ensuring that they receive your estate

– Protect your children – If you have young children, you can appoint a guardian to look after them in the event of both parents dying. Rather than leaving this to the Court to decide, or risk the children being placed in care until the court decides the best place for them, you can choose someone you trust to take care of your children.

– You will decide who receives your estate, not the Crown

– Reduce the risk of inheritance disputes

– There will be less stress for your executor/next of kin after you’re gone

– Your funeral will be how you want it to be

– Safeguard the preservation and future of certain aspects of your estate with ‘trusts’

– You may pay less Inheritance Tax

– Protect your pets by deciding what happens to them

– Protect your investments, such as monies in shared bank accounts and joint tenancies on property

– Protect a business or the shares in a business you own

– For those with more complex families, whether this involves 2nd / 3rd marriages and/or children from previous relationships, a Will provides certainty that your wishes will be carried out and no members of your family will not be overlooked

– It can protect your digital assets such as photos, websites, online purchases, emails and social media accounts

What Happens if I Don’t Have One?

Usually, without a Will, your estate will be left with your next of kin See rules of intestacy for more. If you are estranged from them or have not had the conversation about what you want to happen with your estate, what you want to happen may not happen.

If you have not made a Will there are some common misconceptions about estate law, some of which are:

– You presume to know who would inherit your estate – If you died without a Will in place, everything you own would fall under the ‘Rules of Intestacy’. This means that you would have no control over who gets what.

– There is no rule of ‘common law marriage’ – If you are unmarried but are in a long-term or co-habiting relationship, your partner would not automatically be entitled to anything.

Many unmarried couples incorrectly assume if one party dies, they inherit the other’s assets, but the law does not recognise unmarried couples in this way. There is no such thing as common law marriage. See more on cohabitation.

– If you are informally separated your married partner is likely to be your next of kin

– Children from a first marriage may not receive anything

– If a person dies, especially at a younger age, the chances that their partner may re-marry is probably greater. If your whole estate has passed to your spouse, who then goes onto marry again, there is the possibility of all your assets being inherited by the new partner, bypassing your children. If you have a will in place, you can ensure anything you want left to your children will be, whether that’s immediately or placed into a trust until they reach a certain age.

What Needs to be Written in a Will?

A Will can include:

– Who you want to benefit from your Will

– Who should look after any children under 18

– Who is going to sort out your estate and carry out your wishes after your death (your executor)

– What happens if the people you want to benefit die before you

– What happens to other possessions such as pets, online accounts, online photos, or social media accounts

– Additional informal instructions such as how you would like arrangements for your funeral to take place

When Should I Get a Will?

Many people assume that they don’t really have much to leave in a Will when you’re young. However, if you part-own or have a mortgage on a property, then you have a substantial asset to protect. You can also include other possessions or sentimental items in your Will. You should have a Will at any age, especially if:

– You have Children

– You have assets such as a home

– You have a bank account and/or savings

– You own a car

What do I Need to Make a Will?

Things to consider when writing a Will:

– How much is your estate (everything you own) worth?

– Who do you want to inherit your property?

– What should happen to your estate when you die?

– How can you protect yourself if your circumstances change?

– How can you protect your children or any vulnerable dependents?

To draw up your Will, you will need to know:

– All the assets you want included in your will, such as property, vehicles, savings, and investments

– Any other wishes – such as the type of funeral you want

– Details of any children and family members, including children who are not biologically yours – such as stepchildren or adopted children

How often Should I Update a Will?

Key life events can have a major impact on the validity and effectiveness of your Will. You should review if the following happens:

– You separate from your spouse and have filed for a Divorce (or are in the process of). If you pass away without updating your Will, then your ex-spouse will most likely inherit your estate

– If you have married or entered a civil partnership or are making arrangements for such

– If your family dynamic has changed (perhaps your children have married/divorced/re-married) and this changes the way you wish your inheritance be left

– If you have had a child or you have new/additional grandchildren

– If you, or anyone mentioned in your Will, changes their name or address

– If you sell a property you have identified as a gift to a specific individual

– You become, or there is a chance you could become seriously ill

– Any other key life events

If none of the above have happened, it is still recommended that you review and possibly update your Will every 5 years.

Laws relating to Inheritance Tax are updated frequently, so there may be changes that you need to be aware of that may affect your Will.

Do I Need a Solicitor to Write a Will?

The truth is you do not need a Solicitor to make a Will. You can make a make a basic Will using a DIY Will kit. A DIY Will may seem a more cost-effective option to creating a Will when you compare the fees set by a law firm.

However, instructing a Solicitor to deal with your Will is likely to save your family money in the long run and will make sure that the Will that’s protecting your family is valid and appropriate to your family’s situation.

As a Will is such an important aspect of your family’s infrastructure and future, it’s crucial that the document is legally binding and has your family’s best interests at its core. To achieve this the following needs to happen:

– The Will needs to be written correctly and clearly and contain no errors

– The Will needs to be witnessed correctly

– You need to be in a correct state of mind when creating the Will

– The Will needs to be stored safely

– The Will needs to be officially altered when major changes in your life area made i.e. marriage, children, large purchases etc

– You need to seek legal advice

Avoiding any of the above can risk the validity of the Will.

Whilst creating a Will yourself may appear a more cost-effective option now, a DIY Will may cause various issues at a later time. These issues can include:

– As you’re not a professional, your Will may be poorly drafted and contain errors. These errors can cause delays and additional costs after you’re gone, leaving your family additional stress

– The Will may not be correctly signed and witnessed, making the Will invalid

– Contents of the Will being challenged, which could include your state of mind whilst creating the Will being challenged

– The Will does not reflect changes in your personal circumstances

– Your family may pay additional inheritance tax

– Your family situation is complicated, and this has not been reflected correctly in the Will resulting in your wishes not being fulfilled

– Your Will is complex and therefore a DIY kit is not sufficient for the purpose

– If you use a DIY Will kit, the company that supplies it won’t take any responsibility for your will being correctly made.

– Challenging the validity of a Will may cost your family an unwarranted amount of money after you’re gone, and they will need to instruct a legal professional to help.

– If your Will is deemed invalid, then the Government will be in control of what happens to your estate and it will be distributed according to the ‘rules of intestacy’.

DIY Wills are also to blame for a prolonged probate ordeal for 38,000 families a year. The number of inheritance disputes heard in the High Court increased more than double from 2018, which is largely due to a rise in DIY Wills.

A Solicitor who specialises in Will writing will be experienced at dealing with all manners of Wills, from simple to complex, and will ensure your Will Is valid. Instructing a Solicitor can achieve the following:

– Guarantee the Will is legally valid

– Avoid any successful challenges made to the Will after you’re gone

– Gain professional advice on your estate planning

– Minimise the amount of inheritance tax

– Draft the Will for you and arrange for the Will to be signed correctly

– Make any amendments to your Will when your personal circumstances change

– Provide you with a copy of the Will and store the original safely

You should also seek legal advice if the Will is not straightforward, for example:

– You share a property with someone who is not your husband, wife or civil partner

– You want to leave money or property to a dependant who cannot care for themselves

– You have several family members who may make a claim on your will, such as a second spouse or children from another marriage

– Your permanent home is outside the UK

– You have property overseas

– You have a business

Some common mistakes in making a Will are:

– Not being aware of the formal requirements needed to make a Will legally valid

– Failing to take account of all the money and property available

– Failing to take account of the possibility that a beneficiary may die before the person making the will

– Changing the Will. If these alterations are not signed and witnessed, they are invalid

– Being unaware of the effect of marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a Will

– Being unaware of the rules which exist to enable dependants to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the will could be overturned

Where to Keep a Will

Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep a Will:

– At home

– With a solicitor or accountant

– At a bank

– At the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry for safe keeping

Lindsey Rawson, head of our Wills, Trusts & Probate department, can help you create an estate plan, help draft a Will, support you to deal with a persons estate when they pass away and get all your affairs in order ready for retirement. She specialises in Wills, trusts, powers of attorney, probate and inheritance tax planning.

Lindsey acts for clients in South Yorkshire and beyond and can be contacted by calling 0114 249 66 66 or emailing enquiries@howellsllp.com