Key considerations when making a Will
For many people, the prospect of making a Will can be a daunting one. There can be many reasons for this, including a fear of “tempting fate”, complicated family dynamics or simply not knowing what needs to be included. But none of these are valid excuses not to put a Will in place! Making a Will will help to ensure that your wishes are carried out correctly after your passing and can make dealing with your affairs much more straightforward for those left behind.
In this article, we are going to explore some of the main points for consideration when making a Will.
Appointment of Executor(s)
Every Will should appoint an Executor or Executors. This can be a family member, friend or professional and can also be a beneficiary named within the Will.
Your Executors are responsible for dealing with all aspects of the administration of your estate and will need to notify the asset holders of your death, collect together the estate assets, pay any outstanding liabilities (such as your funeral, credit cards, loans or mortgages) and then divide the remainder of the estate in accordance with the terms of your Will. Trustees are there to administer any trusts that may arise or which you have created.
Your Executors should be someone that you can trust to administer your estate in accordance with the provisions of your Will, any additional wishes you may have expressed and the law.
Executors have a duty to act in the best interests of the beneficiaries of an estate and, when selling assets, a duty to obtain the best reasonable price. If you feel that there are circumstances which may hinder the Executor to act in this way, then you may wish to consider appointing an alternative Executor or an additional Executor to act alongside them.
If you chose to appoint just one Executor, it is strongly recommended that a substitute Executor be appointed to step in should the first named Executor pass away before you or be unable or unwilling to act for any other reason.
It is wise to inform your Executor(s) that you have made a Will naming them as an Executor, and let them know where the original Will is being stored. Please note that there is no obligation for an Executor to take up their appointment and they can choose to renounce their Executorship or have power reserved to them (so long as they have not already intermeddled with the estate).
Appointment of Guardians
If you have a child or children under the age of 18 you can, within your Will, make an appointment of a guardian or guardians for those children. Please note that this appointment will generally only take place upon death of both of the biological parents of the child, although in certain circumstances an immediate appointment could potentially be made.
Funeral wishes
Your specific funeral wishes can be set out within your Will, however these are an expression of wish only and would not be binding upon your Executors, family or anybody else. Unfortunately, there are some circumstances where the law could require you to be buried or cremated!
Many people opt to limit the instructions contained within the Will to their preference for burial or cremation, and perhaps the location in which they wish to be buried or for their ashes to be interred or scattered. Further, more detailed wishes and instructions can be left in a letter of wishes to accompany your Will.
It is by no means a requirement to include your funeral wishes within your Will. However, if there is any likelihood of dispute as to what your wishes were, it is good to have those set out in writing. Of course, there is also the option to put a funeral plan in place during your lifetime to save your loved one the task of making the necessary arrangements.
Legacies/specific gifts
In your Will, you can leave a set amount of money and/or specific personal belongings to any number of beneficiaries.
These gifts would take priority over the distribution of the residue of your estate (see below).
Residue
Upon your death, everything other than any specific gifts made by your Will will be collected together by your Executors and, after the payment of your estate liabilities (to include your funeral, credit cards, loans and mortgages) what remains will form your residuary estate.
You may wish to leave your residuary estate to one beneficiary or to a number of beneficiaries. These may be family members, friends, charities or a combination and you can name as many beneficiaries as you wish.
The division of the residue of the estate can be made in equal or unequal shares (often in the form of percentages or shares) and it can be useful to think about what your estate is currently worth, the value that you would like the beneficiary to receive and the percentage of your current estate that amount would equate to.
The benefit of making a gift of a percentage of your residuary estate rather than a legacy of a specific amount is that if your estate were to increase or decrease in value, so would the value of the percentage left to each of the beneficiaries. This way, the gifts to all beneficiaries would remain proportionate to each other.
Beneficiaries predeceasing
Something that most people do not want to think about is what should happen to any gift (specific or residuary) made to a beneficiary in the event of that beneficiary dying before them. However, it is very important to give consideration to this.
It may be that you wish to leave your residuary estate to, for example, your son and daughter. However, before you pass away, your daughter dies leaving 2 children of her own (your grandchildren). Would you want your daughter’s share of your residuary estate to pass to your son, to your daughter’s children or somewhere different, such as to her partner/spouse?
Some people argue that this is not necessary to make substitute provisions within your Will as the Will can be updated should anything happen to any of the beneficiaries. Although it is true that a Will can (and should) be reviewed and updated regularly, this does rely upon you possessing sufficient testamentary capacity to make a new Will at that time and upon there being sufficient time between the event and your own death for you the make the necessary changes, particularly taking into account that your will likely be grieving at that time also.
A further consideration that you may wish to make is what should happen to your residuary estate if you were not survived by any of your residuary beneficiaries. This will not be necessary for all Wills, for example where there are charitable beneficiaries, but may be an important consideration if, for example, you, your residuary beneficiaries and substitute residuary beneficiaries often travel together.
Marriage
Many people are unaware that marriage automatically revokes a Will. However, if you are planning to marry at the time of making a Will, the Will can be made in contemplation of marriage, i.e. stipulating that the Will is not to be revoked by the marriage.
Review
As mentioned above, you should keep your Will under continuous review to ensure that the provisions made correctly reflect your wishes. In particular, changes may be needed to your Will in the event of a death of a named Executor or beneficiary, if you have disposed of a specific item referred to in the Will, if there has been a change to your financial or family circumstances or if there has been a change in the law.
Claims
It is sometimes possible for people to make claims against your estate under the Inheritance (Provision for Family and Dependants) Act 1975 if they believe that they have not been provided for sufficiently within your Will.
To bring such a claim, the person would need to fall within one of the specified categories and comply with certain criteria, including being financially supported. Our team would be happy to advise you regarding this area of law if you feel that there is a risk of such a claim being made against your estate.
In conclusion, there are a lot of considerations to be made when putting a Will in place, however it should not be a stressful process. Our team are always happy to assist in guiding you through the process with a view to being able to draft a Will on your behalf that truly reflects your wishes.