Common questions when considering making a Will
It's hugely important to make a Will as it ensures your estate is dealt with in the way you wish after your death. If you have not made a Will before, there are numerous factors you should consider before you will be ready to start.
Set out below are various questions and answers to provide you with some guidance on making your own Will, however, should you have any further questions in relation to your own Will, please do not hesitate to get in touch with us.
- Who will be the Executors?
The Executors are the people responsible for administering your estate when you die. They will be dealing with your assets and liabilities and obtaining a Grant of Probate. They must be knowledgeable and trustworthy and have the time available to administer your estate. Ideally, you should have at least two Executors, especially if your Will contains a Trust, but you can always appoint people to act as substitute Executors as well. Executors can be family members, friends or even professionals.
- Who will be the Guardians?
If you have children under the age of 18, it is advisable to pick a suitable person to be their guardian in the event that both natural parents die. Whilst this clause is not legally binding, if there were to be a dispute, the Court would look to the Will as evidence of the parents' intentions and it will assist in your wishes being abided by.
- Will you leave any legacies?
A legacy can be a gift of money or a gift of your possessions (such as your jewellery or your car). They are a good way of ensuring that specific items are left to people of your choice. Many people choose to leave a gift of money to friends, extended family members or to a charity.
- Who will be your Main Beneficiaries?
The 'Residuary Estate' is everything that is left over once all debts, funeral and other expenses have been paid and all legacies have been settled. It can be divided into shares if you have more than one Residuary Beneficiary. It is important to seek legal advice if you are planning on cutting out a loved one from benefitting so that your wishes are abided by in the future.
- What happens if a Residuary Beneficiary dies before me?
When drafting a Will, it is imperative that one eye is kept on the future and that the scenario of what will happen if your Residuary Beneficiary (i.e. main) dies before you is considered. The Will can be drafted so that a fail safe or 'gift over' provision is in place so the inheritance will pass to the children of the main Beneficiary, or it can be drafted so that there are named substitute Residuary Beneficiaries. Alternatively, if you have more than one Residuary Beneficiary, the Will can specify that the share of the deceased Residuary Beneficiary is shared between the surviving Residuary Beneficiaries.
- How do I sign the Will?
In order for the Will to be valid, the person making the Will must sign it. If they do not sign the Will and they have not signed a previous valid Will, then they will be deemed to die 'intestate' and a set of special rules called the Intestacy Rules will apply which determine who will benefit from your estate - and this may not match your wishes.
- Who can witness the Will?
When the person making the Will signs it, they must do so in the presence of two witnesses for it to be valid. If the Will is not witnessed correctly, then the Will is invalid, and the Intestacy Rules will apply, if there is not a previous valid Will. The witnesses cannot be beneficiaries named in the Will, or their spouse/civil partner. If a spouse/civil partner of a beneficiary witnesses the Will, then their entitlement under the Will is invalid and they will not inherit.
- Where do I store my original signed Will?
The original signed Will is a very important document and it must be kept safe. Ideally, it should not be stored in your house - unless you have a fire proof safe. If a legal professional drafts the Will, they will normally offer to store your original Will for you. Some banks still offer to store Wills too. Most importantly, you should let your Executors know that you have made a Will and where it is so that in the event of your death, they can easily do their job.
- Who is going to draft your Will?
Anyone can draft a Will, but it is an important legal document, with far-reaching implications, so that should be taken into consideration when choosing how you wish to draft your Will. It directs who will be responsible for accessing and distributing your assets on your death, as well as who will inherit from your estate when you die. There is little room for error. A qualified lawyer is experienced, regulated and insured and you are best placed to seek their advice when having such a key document drawn up for you.
- How often should I review my Will?
As a guideline, a Will should be reviewed every 5 years to ensure that it is up-to-date. But if your circumstances change, you would be best placed to review your Will. For example, a marriage revokes a Will - so if you do not make a new Will after you get married, you will die intestate and the Intestacy Rules will apply as to who will benefit from your estate.
Writing a Will can feel like a daunting task (one that can all too easily be put off!), but creating a Will is one of the most important things you'll do, as it will ensure that everything you have worked hard for during your life will go to the people most important to you.
When writing a Will you should always seeks professional advice. If you've got more questions, or you'd like to get started today, don't hesitate to get in touch.
For individual advice and assistance contact our Wills, Probate and Trusts Team to find out how we can help.
Christina Polychronakis TEP, Solicitor, Wills, Trusts and Probate Team
Direct Tel: 024 7601 6438