Everyone should have a valid, up to date Will. It ensures that your estate is distributed in the way you wish and saves time, money and unnecessary complication for your survivors.
If you do not have a Will
Your 'estate' comprises everything you own; your house, savings, car, insurance policies, death in service benefit, etc. Without a valid will, these assets may have to be turned into cash which is then distributed according to the laws of intestacy.
This means that when a husband or wife dies, the whole of the estate does not automatically go to the survivor. It is divided through a strict hierarchy of beneficiaries and takes no account of the wishes of the deceased.
Although everyone without a Will comes under the intestacy laws, some groups are particularly vulnerable;
Unmarried partners or those who have not registered a Civil Partnership - there is no provision in law for assets to go to your partner or to her or his children. Assets you hold in your sole name (NOT jointly held assets) may go to your children. Jointly held assets automatically pass to the survivor. This situation needs to be checked with a solicitor.
Couples in second marriages or Civil Partnerships with children from a previous relationship or who have bought in assets to the second relationship.
Single parents - guardians/trustees may have to be appointed by the Court of Protection to look after your children.
People with business assets and/or assets abroad
A valid will ensures that on death your assets go exactly where you want them to go. It gives peace of mind to yourself and your family by avoiding unnecessary delay, expense and possible initial financial hardship in the event of intestacy. Check under 'Reviewing your Will' for other matters to consider.
A properly written will allows for provision to be made to lessen the impact of Inheritance Tax.
With the value of houses having risen during the last few years, many people find themselves in the situation where Inheritance Tax may be an issue to be considered. Inheritances, redundancy payments, pension commutation sums can also increase a persons worth upon death to a degree which can be very surprising. Check it out!
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Where to keep your will
It is not recommended that you keep the original of your will at home because of security and fire risks. A copy may be kept but the original should be kept in a more secure place. Make sure that your executors or other appropriate people know where the original is kept. Make a note on the copy or on other relevant papers.
Most solicitors undertake to hold the will for you if they have written it or at a small charge if they have not. If they cease trading or the ownership or premises change they will normally get in touch with you for instructions.
Banks may hold your will in their safe deposit facility or you can place it in your own safe deposit box but there is a charge.
The Probate Registry also offer a will deposit service. There is a charge of £15. You may take the will in yourself or post it to them. Full details of this service are available by calling 020 7947 7022
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Who should prepare the Will?
A will is a legal document and therefore needs to be precisely worded. Although you can write one yourself either on a plain sheet of paper or on a "Will form" obtainable from stationers, can you be sure you have covered all contingencies, used wording that is clear in law?
It is advisable to seek professional services from a Solicitor to prepare the will. The relatively small fee will be money well spent. Banks also prepare wills but may insist on being appointed executors. The charges for this service can be very high. There are Will Writers who advertise their services. Not all are professionally qualified to the same standard as solicitors.
There is no need to appoint the person who prepares the Will ie, the solicitor or bank, as executor. (See Executors)
You will need to give the solicitor full details of your assets and your family and discuss with them the way in which you would like assets to be distributed. Consider any Inheritance Tax saving possibilities, what if executors die or prefer not to act or the beneficiaries die before you, or if you both die together?
What of marriages in the family or grandchildren not yet born? If you have young children, who do you wish to look after them if you are no longer there? Be prepared to be asked uncomfortable 'what if' questions and be guided as to the best way to achieve your objectives.
Make sure that you understand the terms of the will before you sign it and that it does actually say what you want to happen. Think also that the executors will have to understand it as well.
Remember that when you sign the will in the presence of two witnesses, neither a witness, nor the spouse or registered partner of a witness may be a beneficiary. The solicitor will guide you on this.
It is a good idea for couples each to make their own separate wills at the same time. This may save a little of the expense of making wills.
If you think you may have a large Inheritance Tax liability or if you have complex family or business issues to consider it may well be worth consulting a specialist in Trust Law. Names of specialists operating in your Post Code area can be obtained from 'STEP' (Society of Trust and Estate Practitioners) on 020 7838 4885. or visit their website at www.Step.org
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Who should be appointed as executor/s
The Executors' task is to collect all the assets, obtain a Grant of Probate, account to the Inland Revenue for any Inheritance Tax payable, pay debts and funeral expenses and then distribute the remainder in accordance with the terms of the will. The Executors can do all this themselves or they may seek professional advice from a solicitor.
Anyone over the age of 18 years, including a beneficiary, can be appointed as an Executor, but it is generally recommended that you choose someone younger than yourself. The maximum number of Executors/Trustees is four and normally they must all act together.
Executors can benefit under a will.
Solicitors and banks accept appointment as Executors/Trustees, but remember that they will charge quite large fees against the estate when it is administered.
Before naming your executor/s, ask for their agreement to act.
Tell your executor/s where the will is kept. It can be with your own papers at home or with your solicitor or bank, (charges may be made for storing it). In any event, a copy should be kept at home. You can also deposit the Will with the local Probate Registry (a small nominal fee is chargeable).
Make a list of your assets, where the necessary paperwork is kept, details of insurance policies, investments, addresses of investment managers, banks, building societies etc. and keep it with the will so your executors can find everything they need.
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If you already have a Will
When was the last time you looked at it?
Although your will may never need rewriting it is suggested that about every four or five years, or whenever a substantial change occurs in your personal finances or your family situation, you should consider whether it still represents your wishes.
If any alteration or additions become necessary a new will can be written or a codicil added to amend or extend the will's provisions. A solicitor should be employed to make the changes.
Read the points made above and make sure they are reflected in your own Will. Here are some of the changes in people's lives which often trigger a need to change the Will;
Has your family grown or have your children entered into relationships since you looked at your will? Are they and any future additions to the family provided for by the wording of the will?
Marriage/remarriage/entering a Civil Partnership invalidates previous wills.
Divorce does not automatically revoke your will - some aspects might still be valid and contestable. Consult your solicitor to be sure of your position.
* Your children may no longer need guardians or need to have inheritances left in trust.
Your assets may have changed considerably, allowing different distribution or proportions to be considered.
Executors may have died or would not be as appropriate as before or may prefer not to act.
Inheritance tax rules change every year, have you made provision to minimise the effects as your assets increase in value?
Jointly owned assets pass to the survivor regardless of what your will says. In the event of you both dying together there may be Inheritance Tax problems for your beneficiaries which could be alleviated by provisions in your will. Has your solicitor discussed this with you? There are other ways of owning assets which may be more advantageous.
Was the will prepared by a solicitor and were all the contingencies mentioned above (and more) explained to you and incorporated.
Has your family grown or have your children married since you looked at your will? Are they and any future additions to the family provided for by the wording of the will?
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