Written by Xinlei Zhang.
A Will is a document containing statements by the person making it with regards to the disposition of his/her property after death. The person making the will is called the testator. You may often come across a term ‘estate’, which means all of the testator’s assets (the property you own or have a right to) and possessions whether on your own or with someone else, as well as any debts or liabilities you have. The liabilities will reduce the value of the assets to leave a ‘net estate’. If a person dies without a valid Will, the intestacy rules will apply, which is explained in the following section.
Benefits of making a Will
A professionally drafted will not only ensure that your estate will pass according to your wishes and instructions, but also you will be guided in thinking about your assets and family circumstances to ensure that all matters are appropriately dealt with.
- Giving you control about your assets and make sure your assets pass to those you intended (and are not dictated by general intestacy rules) and that your estate is administered by people you choose (again, not dictated by intestacy rules)
- Ensuring that the people who matter most to you are looked after if you die—this is particularly important if you have young children or if someone vulnerable is dependent on you
- Allowing you to the opportunity to discuss your estate planning with your family which will significantly reduce the prospect of disputes arising after your death.
Process of making a Will
- Your Instructions
Initial information will come from a questionnaire filled out by you or from a meeting with you. The information provided by you in the questionnaire will allow us to assess and confirm that there are no circumstances which would prevent the will from being valid. For example, you will be asked about your health issue that is because a will may be invalid if the testator has or is starting to develop mental capacity issues. Other information needed includes: your personal circumstances (marital status, children and dependents, previous wills etc.); your assets (property, business assets, joint assets, saving, pension, life insurance, debts or liabilities etc.); your wishes as to gifts to be made through the will etc.
- Our Costs
Our fees is likely to be the following:
- £150.00 plus VAT for one simple will;
- £175.00 plus VAT for simple mirror wills (wills made in similar terms, for example between husband and wife);
It should be noted that our fees may increase, should there be complicated factors in you case. Complicated factors include, but not limited to, : complicated family background/expected marriage/foreign property/potentially disappointing beneficiaries etc. Should such thing happen, we will let you know beforehand.
- Will Drafting
We will then prepare a draft will based on your instruction. The time for preparation will depend on the complexity of your estate and personal circumstances. The issues needed to be considered when giving the instruction are explained in the next section.
- Will Finalising
Once you are happy with the draft will, it will be finalised, in other words, “engrossed” and ready for you to execute.
- Will Execution
Ideally, you would sign the final version at our office to ensure that all the formalities for signing the will are met. Alternatively, it may be sent to you with specific instructions to make sure you sign it properly at home.
- Will Keeping
As our extended service to you, we provide free storage service of your will. Alternatively, you may decide to store your will at home and you will be given safe storage recommendations. In either case, you should keep a copy in an accessible place, and your executors should know where to find a copy and the original.
Requirements for a valid Will
The basic requirements for a valid will are that the testator must:
- have the capacity to make a will
The testator must be of sound disposing mind, memory and understanding when giving instructions for the will and when they execute the will.
- have the intention to make a will and
- comply with the prescribed formalities
- be in writing
- be signed by the testator or by some other person in their presence and by their direction
- have a signature made or acknowledged by the testator in the presence of two or more witnesses present at the same time
- be witnessed and each witness must attest and sign the Will or acknowledge their signature, in the presence of the testator
Issues in Will Drafting
- who your executors should be
These are the people who will collect in and look after the estate, pay any inheritance tax and distribute your estate according to the terms of your will. Executors can be anyone (including a beneficiary) over 18 years of age. It is usual to have at least two executors to ensure they can deal with real property. As the executors will administer your estate, you will need to consider carefully who they should be. Sometimes professional executors may be advisable, directors of Lisa’s Law solicitors are very happy to be your executors.
- who you want to appoint as guardians of your children under the age of 18
This appointment would take effect if no other person with parental responsibility survives you. It is advisable to discuss any appointment with your spouse and to consider what happens if something were to happen to the appointed guardians (eg they get divorced).
- beneficiaries
These are the people who stand to benefit from your will. The general rule is that the testator is free to leave their estate as they wish.
- gifts to be made through your will
Gifts in your will are known as legacies. You will need to consider what particular assets you may want to leave to certain people. For example, you may wish to leave cash amounts to certain individuals or organisations that are important to you. General speaking, there are two kinds of legacies.
1. General legacies, these are not distinguished from other property in the estate. Commonly, this will be a gift of money.
2. Specific legacies, these are particular assets to certain people. For example, your black Mercedes car with number plate xxxxxxx gives to your daughter named X. It is important to note that if you no longer possesses the property at the death, the specific legacy will adeem (ie the implied revocation of the gift in a will by a subsequent act of the testator, such as selling it).
You will be asked to provide us the list of gifts you would like to make, i.e. the descriptions of the assets and the names and addresses of the intended beneficiaries.
- who you want the rest of your estate to be left to
This is the amount or assets left of the estate after gifts have been made, debts settled and tax paid. This is usually the largest part of your estate. Normally, this would be left to the immediate family.
- joint owned assets
Property held under a joint tenancy survives to the surviving joint tenant. One of joint tenants has no power to dispose of his interest by will. For example, X and Y owned their home as joint tenants, upon the death of X, Y will own the home absolutely. However, a joint tenancy can be severed during the lifetime of the joint tenant.
- gifts to minors
Gifts to minors need careful consideration. A gift to a minor beneficiary will have to be held until they reach 18. Alternatively, the gift can be vested in the beneficiary via the minor’s parents on the testator’s death.
- any dependants maintained by you
When planning your will, you should always consider any possible claims of dependants under the Inheritance (Provision for Family and Dependants) Act 1975. This provides that categories of person who have been dependent on or maintained by the deceased can apply to the court for provision from the estate if they do not believe that reasonable provision has been made for them under the deceased’s will. The explanation is necessary if you do not wish leave them the reasonable amount, in order to avoid any future disputes to the extent possible.
- failure of gifts and substitution
Even where there is a carefully drafted Will, it is possible that a gift may fail or lapse (for example, where if a beneficiary dies before the testator). Generally we will include substitutes for gifts. WA 1837, s 33 automatically adds a substitutionary gift in favour of issue. For example, if the will included a gift to the testator’s children X, if X died before the testator, leaving children who survived the testator, there would be no lapse; X’s children would take X’s share.
Inheritance tax
Inheritance tax is a charge on the value of your estate at the date of your death. Inheritance tax at 40% is payable on the value of your estate which is over the nil rate band. The nil rate band is a threshold above which inheritance tax is payable and below which inheritance tax is not charged. The nil rate band is currently £325,000 but more or less than this may be available on your death depending on a number of factors, including whether you’ve made any gifts.
Structure of the Will
The usual order of clauses is:
- Opening
Identify the testator by name and address. All aliases of the testator should be included.
- Revocation
Express intention of it being the testator’s ‘last Will and testament’, special clause will be needed if the testator has previous wills.
- Declarations
Making clear statement on the issues like a will made in expectation of marriage/mutual Will/Domicile and whether or not the Will has effect in respect of foreign property/the funeral (burial or cremation) arrangements/reasons for not including certain persons as beneficiaries
- Appointment of executors and trustees
- Appointment of guardians
- General legacies
- Specific legacies and devises
- Residuary gifts
- Powers of executors and trustees
- Attestation
- Intestacy
Dying without a valid will in place, with the result that intestacy law (ie a set of prescriptive rules) will determine who gets what from the deceased’s estate.{1}
{1} – Flowchart from Lexis Nexis.
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