What are the legal issues when writing a will?
Writing a will is one of those times when consulting with a solicitor can be essential. It’s possible to do a ‘DIY’ will or use an online service, but the legal issues around wills, inheritance and probate can be complicated - which means that it’s easy to make a mistake.
The best option when writing a will is to play it safe. Spend a relatively small amount of time and money to consult with a professional and to get this crucially important legal document drawn up properly.
For general information and advice on writing your will or to start the process immediately, get in touch with Slater and Gordon Lawyers. Call our wills, tax, trust and probate solicitors on freephone or and we’ll be happy to get back to you.
Understanding the rules of intestacy
The first legal issue to be aware of in relation to wills is what happens if you don’t have one of these documents in place, or if something happens (such as making a mistake when drawing up the will) to make it invalid. In both of these cases, a person may die ‘intestate’. There are intestacy rules which apply in these circumstances that affect how the person’s estate is divided up. Important points to remember include:
1. Cohabiting, divorced or otherwise legally separated partners do not automatically inherit.
2. Children only inherit the whole of the estate in the event that there’s no surviving spouse. There are also rules which state if there is a surviving spouse and children then an equal share of the estate in excess of £250,000 will be given to each child provided that the estate is larger than £250,000.
3. If there are no surviving children, grandchildren or a spouse, then other relatives such as parents, siblings, nieces, nephews, aunts, uncles and grandparents may inherit - the rules lay out a particular order in which this will happen.
4. If there are no surviving relatives, the entirety of the estate will go to the Crown.
5. Property is not affected by marriage or civil partnership. If a couple own a house together and are joint owners, the other partner will inherit the deceased person’s share in the property, whether or not they’re married, provided the property’s held as joint tenants. If a property’s held jointly but as tenants in common the deceased’s share passes as part of their estate; either under the terms of their will or the rules of intestacy.
6. You may not wish to leave your share of a property to the co-owner and would prefer that this is protected for your joint children, or your children to a previous relationship. You may be concerned about your partner remarrying or disinheriting your children after your death by not including them in their own will.
7. Consideration should be given to ring-fencing assets and to consider whether you would be happy for your share of the property to be used as payment towards care home fees for your spouse or partner after your death.
8. Particular consideration should be given to protecting disabled beneficiaries or beneficiaries who’re in receipt of means tested benefits.
An incorrectly completed, witnessed or signed will can result in a person being declared intestate or partly intestate, which can cause a lot of confusion and uncertainty when it comes to dividing possessions and property. Most crucially, it means that the person doesn’t get a say in how their assets, wealth and property are divided and whether or not they leave a provision for family and close friends.
The value of your estate
The assets that you may wish to leave in your will are known collectively as your estate and can include:
1. Money in current accounts, savings accounts and ISAs
2. Investments, bonds and shares
3. Property you own in the UK and overseas
5. Valuable personal property such as jewellery, artwork or furniture
Deciding who receives your assets if you pass away
How your assets are divided when you pass away is completely up to you, and you can choose family members, friends, carers, charities or any other party you like. These people are known as beneficiaries. You also have control over how what each beneficiary will receive, although bear in mind that anything bequeathed to children under the age of 18 will be held in trust until they come of age.
As your solicitor will advise when you’re writing your will, it’s important to be specific and clear about your wishes. For example, refer to your children by name rather than simply ‘my children’. Also, be aware that you can only bequeath assets that belong to you individually, and the beneficiary is not entitled to property that you’ve sold or that have been destroyed by the time of your death.
In your will, you can also state your wishes for your funeral and cremation/burial, as well as any other particular wishes.
The executors of your will
The executor is the person or people who’ll carry out the wishes outlined in your will following your death. Many people opt to have their wills, tax, trust and probate solicitor act as the executor as they’re a trained professional, but you can appoint a friend or family member if you’d prefer.
It’s a good idea to choose someone who’s familiar with financial matters, and you should also try to ascertain when writing your will whether this person or people will be happy to take on such a big responsibility. Being the executor of an estate can have long-term responsibilities attached to it, especially if the will’s contested or if the document contains details of any trusts.
Witnesses and signatures
One of the most important legal issues of writing a will is ensuring it’s properly signed and witnessed. A solicitor can help you to ensure that you (the testator) signs the will in front of two witnesses who don’t benefit from anything in the will. These witnesses will also sign the document. It’s crucial that the person making the will is of sound mind, fully understands what they’re doing and isn’t coerced in any way.
Seeking expert advice on making a will
For many people, making a will is relatively simple. A quick call to a wills specialist such as a Slater and Gordon solicitor with a few simple details is all it takes to get started. For others with large estates, lots of assets, complicated family situations or unusual or complex requests, it can be a bigger challenge. In both cases, it makes sense to consult a professional.