You should give some thought to the major points which you want included in your will. You should consider such things as:-
- 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.
- Who you want to benefit from your will. You should make a list of all 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 will 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?
The people who are appointed to carry out your wishes are known as the executors. They will have to collect together all the assets of the estate, deal with all the paperwork and pay all the debts, taxes, and funeral and administration costs out of money in the estate. They will need to pay out the gifts and transfer any property to beneficiaries.
It is not necessary to appoint more than one executor although it is advisable to do so, in case one of them dies before you. 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:-
- Husband or Wife
- Relatives or friends
- Solicitors or Accountants
- Banks
- In England and Wales, the Public Trustee or in some cases the Official Solicitor if there is no one else willing and able to act.
It is important to choose executors with considerable care since their job involves a great deal of work and responsibility. You should always approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility. If someone is appointed who is not willing to be an executor, they have the right to refuse.
If an executor dies, any other surviving executor(s) can deal with the estate. If there are no surviving executors, legal advice should be sought.
When a will has been made, it is important to keep it up to date to take account of changes in circumstances. It is advisable for you to reconsider the contents of a will regularly to make sure that it still reflects your wishes. The most common changes of circumstances which affect a will are:-
- getting married, remarried or registering a civil partnership
- getting divorced, dissolving a civil partnership or separating
- the birth or adoption of children, if you wish to add these as beneficiaries in a will.
If you want to make changes to a will, you must not do so by making alterations to the original will after it has been signed and witnessed. Any obvious alterations on the face of the will are assumed to have been made at a later date and will not be valid. In such a case the terms of the original will, before the alterations, remain in force.
If you want to alter the terms of your existing will, you can make a codicil to your existing will, or make a new one.
A codicil is a supplement to a will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a will, or to add beneficiaries.
A codicil must be signed by the person who made the will and be witnessed in the same way. However, the witnesses do not have to be the same as for the original will.
There is no limit on how many codicils can be added to a will, but they are only suitable for very straightforward changes. If a complicated change is involved, it is usually advisable to make a new will.
If you have a child after writing your Will, they may not automatically become a beneficiary even if you have named your other children as beneficiaries.Therefore, in order to ensure that your wishes are carried out, you should update your Will as soon as possible after the birth of a child.
If you have children who are below the legal age to live alone, preparing a Will is especially important. In your Will you can appoint guardians to care for your children in the event of your death. If you fail to do so the authorities will do so on your behalf, in the way they see fit. However, they may not choose the people you would have chosen to care for your children. This can be distressing for the children, as well as other family members, at a particularly difficult time.
Most people choose to appoint a family member as a guardian for their children, especially if the children are very young. With older children who have not yet reached eighteen, friends who live close by and share a similar lifestyle to your family are often appointed as guardians.
A guardian appointed in the Will would be responsible for the day-to-day care and upbringing of the child or children. How you would like your children to be brought up can be explained in a letter to the trustees to ensure your wishes are taken into account and made clear to the guardians chosen. You can also make financial provision for your children. The trustees are also responsible for ensuring that any inheritance the children receive before they reach eighteen is held in a trust for them, until they are old enough to decide responsibly how to use it.
If you die without leaving a valid will you are said to have died ‘intestate’ which can lead to many problems. Many people believe that when they die their assets will automatically pass to their partner, but this is not necessarily the case. If you are not married and your partner dies, you do not have an automatic right under the law to inherit your partner’s assets.
If you die without leaving a valid will your estate will be distributed in accordance with the Intestacy Rules, which can result in complications since the law does not account well for modern personal and family situations. This can have particularly disastrous consequences for unmarried partners, especially when there are children involved. If you are not married or in a civil partnership and do not leave a valid will, then the law will decide how your assets are divided, which means that your partner will not automatically inherit your assets. Intestacy laws also stipulate that if you have no relatives your estate will pass directly to the Crown. If you have not made a Will or nominated Guardians for your children then the courts are responsible for deciding who will look after them if you pass away. Please see the section on the Intestacy Rules on our website for an explanation of how the Intestacy Rules are applied.
Please remember that marriage revokes a will. If you already have a will it will and are about to marry, when you do so, the will ceases to be valid and will have no effect.
If you want to make a will before you marry, it is possible to do so, but to prevent it from being automatically revoked, the will should have a specific clause confirming it is made in contemplation of that marriage.
If you need any further advice or information then please contact our Wills and Probate Department for further information.
Telephone 0845 3024760 or Email wills&probate@gormanhamilton.co.uk
0845 3024760
