Making a Will
It is very important for you to make a will whether or not you consider you have many possessions or much money. It is important to make a will for the following reasons:
- If you die without a will there are certain rules which dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed.
- Unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a will, so the death of one partner may create serious financial problems for the remaining partner.
- If you have children, you will need to make a will so that arrangements for the children can be made if either one or both parents die.
- It may be possible to reduce the amount of tax payable on the inheritance if advice is taken in advance and a will is made.
- If your circumstances have changed it is important that you make a will to ensure that your estate is distributed according to your wishes. For example, if you have separated and your ex-partner now lives with someone else, you may want to change your will. If you are married or enter into a registered civil partnership, this will make any previous will you have made invalid.
If you are in any doubt as to whether or not you should make a will you should consult a solicitor.
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Is it Advisable to use a Solicitor?
There is no need for a will to be drawn up or witnessed by a solicitor. You can quite easily make a will yourself. However, you should only consider this if the will is going to be very straightforward.
It is generally advisable to instruct a solicitor, or to have a solicitor check a will you have drawn up, to ensure it will have the effect you want. It is easy to make mistakes and, if there are any, this can cause problems after your death. Sorting out any problems or disputes can result in additional costs, which will reduce the amount of money in the estate.
Common Mistakes in Making a Will are:
- Not knowing the formal requirements needed to make a will legally valid.
- Failing to take account of all the money and property available.
- Not taking into account the possibility of a beneficiary dying before the person making the will.
- Changing a will. If the changes are not signed and witnessed, they are invalid.
- Being unaware of the fact of marriage, a registered civil partnership, divorce or dissolution of a civil partnership in a will.
- Being unaware of existing rules that enable dependants to claim from the estate if they believe they are not sufficiently provided for. These rules mean that the provisions in the will could be overturned.
Circumstances when it is extremely important to use a solicitor
- When you share a property with someone who is not your husband, wife or civil partner.
- Making provisions for a dependant who is unable to care for themselves.
- When there is a business involved.
- UK resident, but have property overseas.
- Your permanent home is not in the UK.
- You are not a British citizen.
- If there is a danger of family members making a claim on the will.
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What should be included in the will?
To save time and money when visiting your solicitor, give some thought to what major parts you want to put into your will.
- How much money and what property and possessions you have, e.g. savings, property, pensions, insurance policies, bank and building society accounts and shares.
- Make a list of people to whom you wish to leave your money and possessions. These people are known as beneficiaries.
- Who should look after any children under 18?
- Who are going to carry out your wishes as set out in the will (known as executors).
Executors are the people responsible for carrying out your wishes and for organising the estate. They have to collect all the assets of the estate, deal with all the paperwork and pay all the debts, taxes and funeral costs out of money in the estate. They will need to pay all the gifts and transfer any property to the beneficiaries.
You can appoint one executor, though it is normal to appoint two, but up to four executors can take on the responsibility for administering the will after a death.
Listed below are the people most commonly appointed as executors:
- Relatives or friends
- Solicitors or accountants
It is important to approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility. They have every right to refuse if they so wish
If an executor dies, the other executor(s) can deal with the estate. If there are no surviving executors legal advice should be sought.
Rules for a Valid Will
For a will to be valid it must be:
- Made by someone who is aged 18 or over, and
- Made voluntarily and without pressure from any other person, and
- Made by a person of sound mind. This person must be fully aware of the nature of the document being written or signed and aware of the property and identities of the people who may inherit, and
- In writing; and
- Signed by the person making the will in the presence of two witnesses; and
- Signed by the two witnesses, in the presence of the person making the will, after if has been signed. A witness or the married partner of a witness cannot benefit from the will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the will is still valid but the beneficiary will not be able to inherit under the will.
Make sure the will is dated. As soon as the will is signed and witnessed it is complete. If a will is not legally valid, on their death their estate will be shared out under certain rules and not according to the wishes expressed in the will.
It is advisable to keep your will at home in a safe place or with your solicitor or bank. You can also deposit your will at the Principal Registry of the Family Division at the High Court or a district registry for safe keeping.
The Probate Dept
The Principal Registry of the Family Division
First Avenue House
42-49 High Holborn
London WC1V 6NP
Tel: 0207 947 6000
Searching for Copies of a Will
You can make a search free of charge by going to the Principal Registry, First Avenue House, 42-49 High Holborn, London WC1V 6NP. Tel: 0207 947 6000. There is a fee of £5 for a copy of the will.
When writing to request a copy of a will by post, the full name, date of birth and last know address of the deceased must be listed in the letter sent to one of the addresses listed below.
The York Probate Sub-division registry will deal with your enquiry and organise for the requested copies to be sent to you.
Change of Circumstances
When a will has been made, it is extremely important to keep it up to date to take into account any changing circumstances. It is advisable to review 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, separating or dissolving a civil partnership
- The birth or adoption of children if you wish to add them as beneficiaries in a will.
Changing a Will
Because of changing circumstances you may want to make alterations to your original will. The only way you can change a will is by making a codicil to the will or making a new will.
A codicil is a supplement to a will which makes some alterations, but leaves the rest of it intact. This might be done to increase a cash legacy or change an executor or add a beneficiary.
A codicil must be signed by the person who made the will and be witnessed in the same way. However you can change the witnesses if you wish.
There is no limit on how many codicils can be added to a will, but they are only suitable for very straightforward changes. If more complicated changes are required, then it is advisable to make a new will.
The new will should begin with a clause stating that it revokes all previous wills and codicils and the old will should be destroyed.
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