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Guide to Making a Will


Do you need to make a Will?


Every person over 18 should make a Will and we recommend that they review their Will every 3 to 5 years or otherwise on life changing events such as getting married, the birth or adoption of a child, divorce, retirement and bereavement.

Making a Will is the only definite way to confirm your wishes over how your personal property is shared out. Think of making a Will as a form of insurance. It enables you to make decisions as to how you want to dispose of your possessions.


What happens if you die without making a Will?


If you die without making a Will, your estate (your property and all belongings) is frozen and becomes subject to the law of intestacy. The problem with this is that neither you or your family will have any say in the matter if you didn’t make a Will. The beneficiaries and the share they receive will be determined by statute and the whole process can take months or even years.

Whilst the law and complete strangers decide how your belongings are shared, your surviving spouse or partner has all the usual household and living expenses to pay. Your surviving spouse or partner may not have access to money because the assets could be frozen until all the formalities have been sorted out.


When should you make a Will?


Generally, making your Will is best done sooner rather than later. Ideally, the perfect time to make your Will is when you are well, happy and free from any pressure or influence. Making a Will is not the sole province of the ill or the elderly.

As a general rule, it is advisable to consider drawing up your Will as soon as you fall into one of these categories:

  • You buy a property.
  • As soon as you have children or grandchildren.
  • Upon marriage or remarriage (marriage invalidates previous Wills).
  • Upon divorce.
  • If you are living with someone as husband/wife but are not married.
  • If you receive an inheritance/windfall/lottery win.


How do you write a Will?


The law lays down strict rules as to how a Will must be drawn up. If a Will fails to meet any of the legal requirements it may be declared invalid. To make a valid Will you must be over 18 (though there are exceptions) and be of “sound disposing mind”, which means you are capable of understanding the effects of drawing up a Will.

For some people, using a DIY Will form or consulting Will making Companies who are not legally qualified works fine. Be aware though that one mistake in the wording may invalidate the whole Will. There is currently no regulatory body overseeing levels of service. Consulting with a qualified solicitor who specialises in drawing up Wills however, gives you the peace of mind knowing that you have had expert legal, taxation and inheritance planning advice.


What should be included in a Will?


To save time when going to a solicitor, you should give some thought to the major points which you want included in your Will. You should consider such things as:-

  • who you want to benefit from your Will – the people to whom you wish to leave money or possessions. These people are known as beneficiaries. You also need to consider whether you wish to leave any money to charity;
  • who should look after any children under 18;
  • who is going to sort out the estate and carry out your wishes as set out in the Will. These people are known as the executors;
  • how much money and what property and possessions you have, for example, property, savings, occupational and personal pensions, insurance policies, bank and building society accounts, shares.


Inheritance Tax

Currently the first £325,000 (the ‘nil rate band’) of assets passing to your beneficiaries will be free of tax and the balance will be liable to inheritance tax at 40%. However, anything passing to your spouse, civil partner or charity will be completely free of inheritance tax, subject to certain criteria. If you leave 10% or more of your chargeable estate to charity then the remainder will be charged at a reduced rate of 36%.

There are further concessions for business and agricultural property, which could also be free of inheritance tax.

Since 2007, if a person’s nil rate band has not been used (often because everything passes to the surviving spouse) it can be transferred for the benefit of the surviving spouse. This means that often there is £650,000 that can be passed tax free on the death of the second spouse.

The government is currently proposing to introduce an additional nil rate band that applies to the family home when left to direct descendants. This has still not been confirmed but the intention is that this will eventually amount to £175,000 per person. HMRC have indicated that this will also be transferable between spouses and so a family could pass assets of £1m to their children free of inheritance tax.

Executors

Executors are the people who Will be responsible for carrying out your wishes and for sorting out the estate. It is not necessary to appoint more than one executor although it is advisable to do so, for example, in case one of them dies. It is common to appoint two, but up to four executors can take on responsibility for administering the Will after a death. The people most commonly appointed as executors are relatives or friends, solicitors, accountants or banks.

Guardians

A Guardian is someone you have named in your Will as the person you would like to be responsible for your children if they are orphaned before reaching the age of 18. If you fail to appoint Guardians in your Will and both parents die before the children reach 18, the courts Will appoint Guardians instead, but they won’t necessarily appoint the people that you would have preferred to take care of your children.

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