Probate Solicitors Limited - Specialists in Will Writing
Frequently asked questions about wills
- What should I consider before making my will?
- I’m getting divorced should I make a will/revise my will?
- We both have children from previous marriages what should I consider?
- What happens to my will once I’ve made it?
- I already have a will, do I need to review it?
- I have property abroad how do I deal with that in my will?
- Why should I leave a gift to charity in my will?
What should I consider before making my will?
The following are the main points you will need to consider:-
Who will administer your estate?
If you have made a will and appointed someone to look after your affairs, the people who deal with your estate after you have died are called executors. If there is no will (or the appointed executors do not act) then these people are called administrators. Both are sometimes also referred to as personal representatives.
The executors will carry out all the necessary requirements after death for example, obtaining a grant of probate 3É4and distributing the assets to the beneficiaries. It is important that you appoint someone that you trust and someone who will cope with the legal responsibilities and the formalities of completing the paperwork.
You can appoint as many executors as you wish, however, it is usual to appoint two in case one of them does not wish to act or has died before you. It is generally advisable not to appoint more than four for practical reasons. To apply for probate they must be 18 or over and they must not be a bankrupt or a convicted criminal.
It is common to appoint member(s) of the family as an executor, a trustworthy friend or the solicitors firm that prepares the will. Many solicitors offer this service to clients. At PSL there is no extra charge for this service. Our fees are the same as we would charge an executor who instructed the firm. The charges are paid from the estate.
Once you have decided on the people you would like to appoint, you should check with them that they happy to act for you.
What is a legacy?
This is the term used to describe the cash gifts or specific items that you leave in your will; they can be made to any person, charity or other legal entity (e.g. a company). You can decide when the gift should be received, for example if you were leaving money to a child you can state an age when they are to receive it. The same applies to gifts of specific items, for example; jewellery, cars, houses, shares.
Before making your will it is useful to consider what assets you have, decide what legacies you will leave and to whom you will leave them. It’s important to remember that you can only leave items in a will that belong to you; jointly held property cannot be disposed of in the will. It is also extremely important that the name of the person or company is absolutely clear so this means getting full names or the proper legal description in the case of a company or charity.
If you no longer own the item at the date you die then the gift will fail.
Rather than specific cash gifts it can be better to leave a share of residue (see next question below).
What if I can’t decide what to do with everything?
The ‘residue’ is that part of your estate which you have not specifically left as legacies. When considering making a will you should spend some time thinking about how you would like to divide up the residue of your estate.
When leaving gifts of "residue" you need to think in terms of percentages rather than specific amounts as you will not know how exactly much you are going to have left. This will be as a percentage or share of the "residue". It can be expressed as half, third, quarter, etc or as 50%, 25% etc.
Who will look after my children?
By making a will you have the opportunity to appoint a guardian or, more often, two guardians. Guardians are the people who should look after any children of yours under 18 years old who may be left without a parent. The appointed guardian will assume parental responsibility upon your death; they will be able to care for the child and make decisions as a parent would. This is a big responsibility and you should always check with the person, that you would like to appoint, that they are willing to act. You also need to take care how you pay your guardians to look after them. Some form of trust is usually better than an outright gift.
A guardian does not replace a natural parent so this only takes effect if both parents are dead.
Can I detail my funeral wishes in my will?
You can write down any specific plans you would like for your funeral although it is not legally binding. Often these plans are written into a ‘letter of wishes’ which is kept with the will. In this way you can state whether you would like to be buried or cremated, what type of service you would like, what music you wish to be played and where you would like the service to be held. The more information you can leave, the easier it can be for loved ones who are often grateful not to have to make decisions at such a difficult time.
Increasingly people are buying prepaid funeral plans which includes all their preferred arrangements and wishes.
I’m getting divorced should I make a will/revise my will?
Whether you have a will or not, you would be well advised to make a new will as soon as you are certain your separation is going to be final. Do NOT wait for the divorce to be finalised as this can take months or even years. The same also now applies to official civil partnerships and marriages between same sex couples.
You may also need to consider severing the ownership of your house into a tenancy in common to ensure it does not pass to your estranged spouse. However, there are both tax and legal consequences in doing this so you should always take specialist legal advice first.
I already have a will?
The chances are if you already have a Will you have left most or all of your estate to your spouse. Obviously if you’re getting divorced it is unlikely that you would want them to benefit. Until your divorce is finalised with a decree absolute any gift to your spouse in your old Will is still valid. If you were to die before you divorce, your assets would be left in accordance with your Will, presumably to the spouse that you are divorcing.
Even if you were living with someone new they will not receive anything from your estate and could be left without anywhere to live (although they might have a legal action under the Inheritance Act but that is difficult and costly).
Once you are properly divorced any existing Will is still valid but is read as if your spouse had already died before you.
I don’t have a will?
If you don’t have a will the laws of intestacy will decide who inherits your estate. This is a process which cascades your assets through your family (see our intestacy flowchart). Until you are divorced you still have a spouse and the law states that the spouse will always be the first to inherit most if not all of what you own.
We both have children from previous marriages what should I consider?
Getting married
If you have already made a Will before you were married, which was not specifically worded to be written in contemplation of marriage, then it will no longer be valid once you marry/re-marry. For this reason you will have to make another Will to ensure that your estate is distributed as you would like it to be. If you are planning to marry soon then you can make a Will in advance to save having to worry about it afterwards. It is sensible to make your Will before marriage as you are likely to be travelling immediately after your marriage on honeymoon therefore slightly more at risk than normal.
Getting re-married
When you re-marry any Will you made earlier will automatically and immediately be treated as revoked and will therefore not be valid. This may be of particular concern if you have children from a previous marriage who you would like to inherit part of your estate. Once you re-marry and in effect do not have a Will, the laws of intestacy will decide who inherits your estate. This is a process which cascades your assets through your family (see our intestacy flowchart). Whilst you have a spouse the law states that the spouse will always be the first to inherit most if not all of your wealth. Depending on the value of your estate this may leave your children with nothing.
What happens to my will once I’ve made it?
When you have made your Will it is not valid until it has been properly signed by you and witnessed by two independent witnesses. The Wills Act 1837 sets out strict rules about how a Will should be signed and further special rules for people who are blind or incapable of physically signing. If you get this wrong your will may be worthless; many home-made Wills are invalid for this reason.
Once that is done, the original document must be kept safe. Most people, who use a solicitor to do this although this is not compulsory. The important thing is that it is kept protected from fire and water or deliberate destruction by someone else. If it is damaged it may not be legible and may therefore be invalid.
Normally only the original Will is admissible for probate and if it is lost or destroyed whilst in your possession it is presumed to have been revoked (cancelled).I However, if it is lost or destroyed whilst being held by someone else (e.g. your solicitor) then there is no presumption of revocation and a copy can normally be used instead to obtain probate.
It therefore makes good sense not to keep the original yourself but to also keep a copy of the will somewhere safe and advise your family where the original is stored in the event of your death.
I already have a will, do I need to review it?
You should always be mindful that your will should reflect your current situation and wishes. It is sensible to review your will at regular intervals; where it has taken account of any inheritance tax rules you should review it on a regular basis to check that the tax rules have not changed. It is usual for people to review their wills every two to five years. For further information on amending your will see our page on changing or updating a will.
I have property abroad how do I deal with that in my will?
If you own property abroad you will most likely need to make a will in that country and take specialist advice there. In the UK you can deal with your estate however you wish. In many European countries, including France and Spain, the law often dictates how the property passes and you have no say. These rules however may depend on where you are deemed domiciled (or habitually resident) at the time you die. Most European countries will respect the English rules as long as you are not permanent domiciled in that country. The rules on domicile and residency are complex and likely to be more so following Brexit. These are not the same rules that apply for tax purposes so do not assume that they are.
Land and houses will be dealt with by the law of the country it is in, whilst property such as the contents of the house and other moveable objects will be dealt with by the law of the country where you were domiciled.
If domiciled in England you are likely to be taxed here on assets you own everywhere, not just in the UK.
Owning property abroad may leave your estate with complex legal and tax issues so it is important to take specialist legal advice.
Why should I leave a gift to charity in my will?
For years charities have relied on donations and legacies left by people in their wills. It may be that a specific charity helped you or your family and you would like to give something back to them. Legacies left to charity are paid before the inheritance tax is deducted, they can therefore be a way of reducing the inheritance tax bill.
Some charities offer a free will writing service through nominated solicitors, of which PSL is one. It is very important to get the name of the charity correct and also decide whether a similar charity should benefit if that charity does not exist when you die. Your solicitor can help you get this right.
If you have any questions you would like to ask about making a will contact us on 01564 758055
