FAQ's - Wills

In answer to frequently asked questions regarding Wills, please find below a list of questions together with answers ...

• Why should I make a Will ?
• What happens if I don't make a Will ?
• What can I say in a Will ?
• What can I not leave in a Will ?
• What if I jointly own property ?
• What is a Mirror Will ?
• What about Gay or Lesbian couples ?
• What is an Executor ?
• What is a Guardian ?
• Where should I keep my Will ?
• What if someone dies who I have left a gift to in my Will ?
• Who can dispute a Will ?
• When should I review my Will for possible changes ?
• When is inheritance tax payable ?

Why should I make a Will ?
Making a Will enables you to choose exactly what happens to all of your assets by specifying how these are to be distributed after you have died. Writing a Will also gives you the peace of mind knowing that you have yourself chosen who gets what and it considerably simplifies the required formalities and reduces costs at a very stressful time for your family.

Also, if you have any children, making a Will enables you to appoint guardians to look after them in the event of your death (if the other parent is unable to do so).

What happens if I don't make a Will ?
If you don't make a Will, your estate (your personal belongings, property, savings etc) will be distributed to your next of kin after the payment of any debts according to the laws of intestacy regardless of your personal wishes and/or your relationship to that person at the time of your death. This could mean that your spouse might not receive the whole of your estate or an unmarried partner might not receive anything and/or you might be liable to unnecessary tax.

What can I say in a Will ?
When you make a Will you can say how you would like your financial affairs to be dealt with after your death. You can also add any personal comments and if you wish, choose whether you want to be buried or cremated. You can decide if you would like a formal service and if so specify where it should be held. You can also choose if there should be a sermon or any particular hymns. Your Will does not have to be a long and complex document and it should always be as clear and simple to understand as possible.

What can I not leave in a Will ?
It may seem obvious but you can't leave anything in a Will that you don't own - usually this includes 3 main categories:

1. PROPERTY
If you jointly own property with someone else as joint tenants then upon your death your share automatically goes to the surviving co-owner. It does not therefore form part of your estate and cannot be left to anyone in a Will. However, if you hold the property jointly with someone else as tenants in common, your share will not automatically pass to the other person when you die and you can therefore leave it in a Will to whoever you wish.

2. LIFE POLICIES
If you have a life insurance policy it will usually be drawn up on trust for someone else so it will not therefore become part of your estate when you die - for this reason you do not need to mention it in a Will.

3. PENSIONS
In exactly the same way as any life policies pension rights may also pass outside a Will (or end on your death) so they do not need to be mentioned either.

What if I jointly own property ?
Many people don't realise that if they own property (land/buildings jointly with someone else) as "joint tenants" (e.g. most married couples own jointly owned property as joint tenants) then their "share" of that property automatically passes to the other person upon death and does not form part of his or her estate. There is therefore no need to make any mention of that "share" of a property in a Will nor any purpose in doing so.

However, if you own a share of a property as "tenants in common" (e.g. this is more likely in the case of an unmarried couple) then you can leave your share of that property to whoever you want in a Will (e.g. to the other co-owner). If you are in any doubt as to how your property is owned and/or you want to change the way that you own it, you must seek legal advice, without a valid Will it can take months or sometimes even years to sort out your affairs and in the meantime your surviving dependants (either a spouse or a partner or a child) have all the usual household expenses and possibly no access to any money because all of your income may be frozen until everything has been sorted out. If you have left a Will it shouldn't take more than two or three months at most to sort everything out and for your executors to release your assets to the people of your choice.

What is a Mirror Will ?
A Mirror Will is when a husband, wife or partner make almost identical Wills leaving everything to each other if one of them dies and then if they both die together to their children (if any) or, if there are no children then to someone else.

Technically there is no such thing as a "Joint Will" - there must be two completely separate legal documents although they will both have very similar contents that "mirror" each other.

What about Gay or Lesbian couples ?
It is particularly important for gay or lesbian couples to make a Will because only married people are recognised as "couples" under the present law. Gay partners have no legal standing no matter how long they have lived together so unless they each make a Will setting out their wishes their assets will not go to each other but will automatically pass to the surviving members of their family (i.e. brother/sisters or parents) under the rules of intestacy.

The easy Wills online service has been designed to be used equally by either married or unmarried or gay or lesbian couples.

What is an Executor ?
Your executors are the people who will deal with your estate after your death. They will collect in your assets, pay all your debts and any inheritance tax, deal with any specific legacies that you have left and then distribute the remainder of your estate in accordance with your wishes.

If you have any children they will also act as trustees to look after monies until they are old enough to inherit and they will also be able to use the trust money to help support them in the meantime.

You can appoint up to four executors including one of the beneficiaries (e.g. your spouse/partner), it is common for a Will to appoint a main beneficiary as an executor). If you appoint your spouse/partner they can act on their own (with reserves appointed to act if they die before you) or jointly with another person or persons.

We recommend that you appoint at least two executors in case one of them is unable to act for whatever reason.

Make sure that your chosen executors are prepared to act because they cannot be forced to do so.

When your Will is completed it should be kept in a safe place and you must tell your executors where it is stored.

What is a Guardian ?
When making a Will you need to consider who should be the guardians of any children under the age of 18 years who may survive you. Usually the appointment of a guardian or guardians takes effect on the death of the second parent.

The duties of a guardian are similar to those of a parent. They are responsible for the day to day upbringing of your child as if he/she was their own. Normally it is best to appoint 2 members of your family as your guardians who are living together in a stable relationship but if the children are grown up it may, depending upon your own personal circumstances, be more appropriate to appoint close friends.

Don't worry about leaving any money to the guardians for the purpose of enabling them to carry out their duties. Your executors (who should not be the same as the guardians) will be able to authorise the use of any monies that you have left to the children for their benefit until they are old enough to inherit.

Finally when you make a Will, don't forget to tell the proposed guardian of your intention to appoint them to ensure that they are willing to take on the responsibility of looking after your children if this becomes necessary.

Where should I keep my Will ?
There is no formal requirement as to where a Will should be stored but obviously it should be kept in a safe place that is easily accessible.

For your peace of mind our online Wills service can store your original Will securely for a nominal fee of £20.00 per annum (payable by standing order).

It is not advisable to keep a Will in a safety deposit box because after your death your executors will not be able to open that box without obtaining a Court Order.

You should always make a copy of your Will (which should clearly be marked "copy" on all pages) and make a note on the copy where the original is kept. Finally tell your executors where you have kept your Will and give them a letter of instruction regarding any matters that you do not wish to include in your Will (but do not staple or attach this to the Will in any way).

What if someone dies who I have left a gift to in my Will ?
If when making a Will you leave a gift of an item or money to someone who then dies before you, that gift goes back into your estate as if it had not been left to anyone in the first place.

If they die before they receive their legacy but survive you by more than 30 days then they will receive their gift posthumously and it will then form part of their estate.

However if someone who you leave a gift to fails to survive you by more than 30 days then their share is divided among the other beneficiaries in the same proportion to each other as before.

Who can dispute a Will ?
Very few Wills are ever disputed but a spouse, former spouse, child, grandchild, parent and "common law husband/wife" may all be able to make a claim if they believe that they are entitled to more, or that they were omitted without reason, or that your wishes have been misinterpreted or misunderstood.

If you omit any of the above without a clause giving your reasons either in the Will itself or in a signed statement that you give to your executors, a Court might decide that their omission was an unintentional oversight.

To get a Will invalidated for any other reason someone would have to go to Court to prove:

a) that you were of unsound mind or
b) you were unduly influenced by someone else or
c) your signature was forged or
d) the Will has been altered or tampered with in some way

To prevent any disputes always try to make sure that a Will is clearly written, that it is not ambiguous in any way and that your wishes are clear and concise.

When should I review my Will for possible changes ?
Generally you should review your Will every time a "life event" happens. For example if you separate from your spouse or partner, if you have a child, if there is a death in your family, if there is a change in your financial circumstances, if there are changes in the types or rates of taxation, or if you are going to live abroad.

In particular it is important to know that you should make a new Will if you marry or remarry because any previous Will is then automatically revoked unless it contains a clause that says it is being made in contemplation of marriage (our online Wills programme offers this option). Although getting divorced does not automatically revoke a Will any clause that refers to a former spouse will no longer be valid and if he or she is named as an executor then they will not be allowed to act.

For all of the above reasons our online Wills service has made it simple for you to update your Will at any time in the future. All of the information contained in your most recent Will is always securely stored on our site so with your own username and password (and for a nominal fee) you can easily make changes (without having to go through the whole process) whenever you want.

When is inheritance tax payable ?
Any assets passed to a husband or wife are exempt and the first £275,000.00 of your estate (the Nil Rate Band) will also be free of inheritance tax but everything above that figure will be taxed at 40% so, for example, if the net value of your estate is £400,000.00 inheritance tax will be payable on £125,000.00 (i.e. £50,000.00 tax).

When considering whether any inheritance tax will be payable on your estate you should add up all of your assets (property, savings, stocks and shares, premium bonds etc) and then deduct any liabilities (mortgage, credit cards, loans etc).

Remember not to include anything that will not form part of your estate (e.g. property held jointly with someone else as joint tenants and usually any life policies and pensions).

If your net estate is more than £275,000.00 tax will also be payable on any gifts (exceeding more than £3000 in total in any tax year) made within 7 years of your death but again this does not include anything given to your spouse.

It is important to know that all gifts to a registered charity are tax free and there are also tax allowances for some gifts of agricultural or business interests.

IMPORTANT NOTE
(A) A married couple with sufficient assets can save a considerable amount of tax by both setting up in their Wills a Discretionary Trust of a sum of money equivalent to the Nil Rate Band personal tax allowance in favour of their spouse and children.
(B) Anyone else who thinks their taxable estate will exceed £275,000.00 should consider Inheritance Tax Planning.

If either of the above apply to you a simple online Will prepared by our easy online Wills service may not be suitable and you should consider instructing us to prepare a more tax efficient Will on your behalf. If you would like us to call you back to arrange for someone to contact you to discuss this please contact us now with full contact details including two contact telephone numbers.