I have said this a few times now, its probably the largest legal document you will ever make as it deals with everything you own! Sadly, some people do not get round to it for one reason or another.
What happens if I do not have a Will? Well, check out our line tool for a full breakdown and discussion over passing away intestate (i.e. without a Will).
So, what should a basic Will confirm? I will refer to a few points to consider when making your Will, this is by no means an exhaustive list but will hopefully give you some insight into how a Will should sound and look. It sounds very legalese that’s the first thing I will say, but that is because for over a hundred years clauses have been used, argued over and tested. As a Will writer I know which clauses to use as they are cast in stone and will not be argued at a later date. So, they will sound a bit odd using some strange terminology that is not on purpose to confuse it’s on purpose for a precise application of your wishes.
A basic Will would start with confirmation of the testator and the application of jurisdiction (maybe).
This is most commonly the full name and address of the person making the Will. Is the person known by any other names? Is this Will relating to property elsewhere? Just in England and Wales? Worldwide? If worldwide are there any other Wills in different jurisdictions? You may not want to revoke Wills abroad and this would need to be stated and usually at the beginning here. Also, is this being made in contemplation of marriage? Should it still stand if the marriage doesn’t take place?
2. The date
The date can be at the end of the Will or at the beginning, sometimes even both, but it should be dated on the date of signature not any other time.
3. Revocation Clauses
This is to confirm that any other promises, wishes are void, this is stating this is to be your last Will and testament, unless, you wish for certain things to take place or have another Will, it should be made clear in this part of the Will what you are revoking.
You need to state who is to look after your estate when you pass away, if you don’t specify the law will allow certain beneficiaries to apply in a hierarchy. Executors and trustees are often nominated as the same people although they do not necessarily have to be. There is no maximum number of executors, but the Probate registry will only accept an application from up to four individuals. Who can be an executor? Anyone over the age of 18 can be your executor, named beneficiaries can also be executors and in some instances, it is good to have beneficiaries as executors as there is often a lot of work and responsibility involved and can be a tough process to undertake complete for free.
There are different types of legacies and gifts, contingent, demonstrative, general. All are dealt with slightly differently.
Remember specific pecuniary legacies are paid first! This means for instance you leave £50,000 to a cousin and the remaining estate to you children (when your estate was around £500,000) if you pass away having spent most of that money with £60,000 standing to your name, that cousin would take the first £50,000 so be clear that is what you want to happen.
Specific items like jewellery or cars or paintings, a beneficiary will only take these if you owned them on the date of death, i.e. you haven’t given them away or sold them off before that time.
Demonstrative gifts might be something paid from a specific account, if there are no funds in that nominated account, funds will be taken from elsewhere, so again its important to be clear as to whether certain amounts or certain accounts are required.
The person making the Will has to sign and this must be with two witnesses, sometimes they required tailor made attestation clause (attestation meaning signing clause) where the Will may have to be read to them if they are unable to see or these days! If signed online!
The above is a basic make-up of the Will but there are other considerations:
- Identification – Make sure you clearly identify the people!
- Gifts to Children – Do you want them to have this at a certain age? Certain requirements? Are the requirements legal? Up to 25 years is unlikely to cause extra tax implications but be careful!
- What happens if beneficiary predeceases? – make sure you consider / include what happens in that instance.
- Gifts to groups – Gifts to grandchildren living, or if they are born soon after how long after will this gift still apply?
- Charities – Be clear which charity and how much!
- Inheritance Tax – Where is this going to be paid from? Does each beneficiary pay a share? Or, from one place, i.e. you overall assets pay tax before being divided.
- Company shares – Companies often change names so identifying these can become cumbersome and tricky.
- Land & time shares – Are they subject to mortgages and/ or other third party restrictions.
- Survivorship clauses – do you want a timeframe of survivorship? Just in case of passing in quick succession.
That’s a lot of law…………..
What about burial or cremation? I want to make sure I am buried exactly where I want. So above I have explained to you how precise you need to be…..however….. funeral wishes are not legally binding! You are hoping your friends and family follow your wishes.
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