Home What's New? Free Content Testimonials Contact Help

Inheritance Tax Tax Tips Articles & Advice Legal Updates Probate

FAQ - Wills

When should I make a Will?

In England and Wales you are able to make a will from the age of 18. A will should be made if you are getting married, about to have a child, about to be divorced or are getting remarried. Additionally, if you have savings and investments which you wish to decide as to distribution and this is also pertinent with regards to property. These issues are dealt with in more detail later on.

Capacity

Any person aged 18 or over can make a will but it will not be valid unless the person making it has the requisite mental capacity. In drafting your will, it will be assumed that you have the requisite mental capacity - namely that you understand the legal consequences of making the will. No steps will be taken by myself to test mental capacity thus if you have any questions please contact me.

Your estate; What is included?

Your estate is comprised of everything that you own, in your sole name, after all your liabilities, debts and various expenses have been paid. In addition, life insurance policies and pensions usually do not form part of your estate as they are usually nominated to specific beneficiaries already.

Gifts Items & Money

It is vital when making a gift of an item that a full and detailed description is included to ensure that you executors can easily identify it. If the item cannot be identified the intended gift will fail and the item will pass to the beneficiaries who receive the remainder of the estate. Where money is concerned, it is essential that the money gifted is actually available to be distributed. If the funds do not exist the gift will fail and the beneficiary will not receive the gift.

Land & Property

The online forms to be completed by you requests details of any land and property owned by you. If you own your property jointly with someone else, you may do so as joint tenants or as tenants in common. These terms will have been explained to you when you purchased your property. As I will not be inspecting your title deeds, I will rely upon information supplied to me by you on this matter.

Many joint owners of property are joint tenants. This means that if either of the owners should die, the surviving owner automatically inherits the property. As such, the destination of that property has been pre-determined by the joint tenancy, and cannot be left to anyone in your Will.

Moral Obligations

Your final wishes as to the distribution of your estate may not be what certain family members had anticipated or hoped for. It is therefore important that you consider, being making your final decisions, if you are morally responsible for maintaining a family member or if they are dependent on you.

The reason this consideration is important is because a family member or dependant can make a claim to the court under the Inheritance (Provisions for Family & Dependants) Act 1975 if they have been left out of your will entirely or if they have received far less than they had expected. Accordingly, the Court has wide powers to accord them a share or larger share, and thus reducing the gifts of the other beneficiaries you nominated. Thought should be given by yourself and the will drafter you appoint as to how to safeguard your estate against any such claims.

Marital Status

If you wish to have a new will because you are separated and/or are considering applying for divorce, you should make this clear. The will itself will only be a temporary measure and your spouse may have a claim against your estate if you were to die before the divorce proceedings were finalised.

Contemplation of Marriage

The making of a new will revokes any previous wills you made and this will also apply when you marry; the marriage will automatically revoke any will you have previously written. If you wish to make your will before you marry with the intention that it remain valid after marriage, you will need to make this clear in the will itself, and raise it with the will drafter.

Cohabitation

The laws relating to succession, intestacy and inheritance tax do not recognise the cohabitation relationship and consequently, unmarried couples do not automatically inherit each others property on death and furthermore they do not inherit free of inheritance tax either (married couples automatically receive spouse property and it is totally exempt of inheritance tax). These issues should be discussed with the will drafter.

Executors & Guardians

Executors are the persons you appoint to carry out the distribution of your assets as you have instructed in your will. It is important that the persons you appoint consent beforehand to the appointment, as they will be able to refuse the appointment afterwards. If your will creates a trust, they will also act as your trustees and where this is the case, two persons will need to be appointed. Beneficiaries in the will can also act as trustees.

Where you have minor children, it is wise to appoint guardians who will assume the role of parenting your children should both natural parents die before the children reach the age of 18. This appointment should be discussed with the persons in mind due to the heavy responsibility that it will confer upon such appointed.

Beneficiaries

Beneficiaries are the persons whom you have gifted to in your will, either by specific gifts, money, or a share in your estate. As mentioned above, beneficiaries can act as executors under your will but UNDER NO CIRCUMSTANCES should they act as WITNESSES to your will as this will automatically invalidate their gift.

If a beneficiary dies before you it may not always be necessary to make a new will. Provided you have already made provision in your will for the beneficiary's gift to pass to someone else - a substitution. For example, if your partner/spouse dies before you, you could state that his/her gift should go to their children instead. Many types of substitution gifts can be created to suit your wishes.

Children/Grandchildren

References to children or grandchildren in a will legally include legitimate, illegitimate and adopted children but not step children. If you wish to benefit step-children, the issue should be raised with the will drafter.

If you are going to make dispositions to your children (whether adult or minor) it is automatically implied by the law that should they fail to inherit the gift themselves (i.e. predecease you for example) but have children of their own, such last mentioned children (your grandchildren) will inherit their parent’s share.

Sometimes, it is desired that the children’s gift be re-directed elsewhere other than potential grandchildren. If this is the case, a specific clause will need to be inserted in the Will to exclude the above presumption.

Vesting Age of Minor Children

If leaving dispositions to minor children, the gifts will be held in trust until the child attains the age of 18 or 21 whichever you specify.

If the value of the trust remains within the inheritance tax nil rate band (for 2008/09 £312,000) then either age is suitable. However, if the value of the trust exceeds these levels, additional tax charges will be levied if choosing the age of 21.

Tax

It is possible that the value of your assets is subject to Inheritance Tax upon your death. The tax payable will depend both upon the value of your estate, and whether you have made any provisions to minimize the impact of the tax during your lifetime, or as part of your Will. The information you provide will help me determine if any tax planning is required. Please also read the Inheritance Tax section for further details.

Further information on Will storage and tracing wills

If you have any questions which have not been answered already, please do not hesitate to contact me.