Key things to think about when making your Will

What are the key points I should consider when making a Will?

Making a Will means you get to decide what should happen to your property, money and possessions after you die. It also gives you an opportunity to choose the people who will make all the necessary arrangements for your estate and to ensure your children (or other dependents) are looked after. Your estate is basically everything you own, including money, property and possessions, minus any debts.

A Will should reflect your own specific personal and financial circumstances. Although every estate is different, several important points should be considered. 

Who should handle your estate?

Your executors are the persons responsible for administering your estate. Their role will include identifying and valuing your assets, paying debts and tax, applying for a Grant of Probate and distributing the estate to your beneficiaries.

You need to make sure that you appoint people whom you trust and who are likely to be able and willing to undertake the role. Ideally it should be someone with reasonably good organisation skills and someone who is likely to be able to fit the responsibilities in to their schedule.  It is often a good idea to appoint more than one executor and to name substitute executors in case one of your original choices dies before you, or is unable to act for some reason (they might be in hospital or abroad for a lengthy spell).

Executors can also be beneficiaries of the Will. You can appoint a professional executor e.g. a solicitor or accountant to be one of or your sole executor, but note that they will need to charge the estate for their services.  Executors can always hire a solicitor to assist with the estate, even if they are not named as executor in the Will. For more complicated estates, or where there is a risk of disagreement between family members, the appointment of a professional executor in the Will might be appropriate.

Who do you want to benefit?

You should consider carefully who you wish to inherit your estate. Beneficiaries should be identified clearly by their full names and relationship to you so that there is no uncertainty. If you are providing uneven amounts to beneficiaries who might have expected to receive the same each (e.g. your children), then ideally you should explain this to them in person, or at least leave a letter for them to open when you die. Otherwise, they might forever be wondering why they received less than others.

It is also important to decide what should happen if a beneficiary dies before you. You may want that person’s share to pass to their own children, to another person or to be divided between the remaining beneficiaries. Addressing this in the Will prevents an unintended and potentially unwelcome result.

Are there particular monetary gifts you wish to make?

You might like to leave a particular sum of money, an item of jewellery, a work of art or another possession to a named person or charity. These gifts should be described sufficiently clearly to avoid uncertainty. However, if you have a long list of items to give to particular people it is a good idea to list these in a Letter of Wishes to accompany the Will, rather than cluttering up and unduly lengthening your Will.

The residuary estate

The Will should also describe what should happen with the remainder of your estate after debts, tax, expenses and specific gifts have been paid. This is known as the “residuary estate”. If you leave a percentage of the residuary estate out, then this can result in part of the estate passing under the intestacy rules.

It is worth considering whether a monetary gift may become disproportionately large or small over time. A gift that appears appropriate when the Will is signed may have a very different significance many years later. It is also not a good idea to use up too much of the value of the estate with monetary gifts, otherwise the people you intend to benefit from your residuary estate could potentially be left with very little of the remainder.

Do you have children under the age of 18?

Parents of young children should consider appointing guardians to care for them if both parents die before the children reach 18.

You should also decide the age at which a child or young beneficiary should receive their inheritance. Without alternative provision, a beneficiary will usually become entitled at 18. Some parents prefer an inheritance to be held until the beneficiary reaches 21 or 25, when their children might be more mature to be able to handle what could be relatively large sums of money.

What assets do you own?

Before making a Will, it is helpful to prepare a general summary of your assets and liabilities. This may include property, bank accounts, investments, business interests, pensions, life assurance policies and assets held abroad.

Not every asset will necessarily pass under the terms of your Will. Property owned as “joint tenants” and some joint bank accounts might pass automatically to the surviving owner. The way in which assets are legally owned should therefore be checked as part of the Will planning process.

If you own assets in another country, advice may also be required in that jurisdiction. Note that getting hold of assets held abroad after your death will likely prove time consuming and expensive after you die.  Also, different countries apply different succession and tax rules, and it might be appropriate to have separate Wills dealing with assets in different jurisdictions.

Could anyone challenge the Will?

In England and Wales, certain people may be able to bring a claim against an estate if your Will does not make reasonable financial provision for them. This can include a spouse, civil partner, child, dependant or, in some circumstances, a cohabiting partner.

If you intend to exclude someone who might expect to benefit, or to leave unequal shares to family members, it is important to discuss the reasons with your solicitor.

Is inheritance tax relevant?

The inheritance tax position should be considered when making a Will, particularly where the estate includes valuable property, business interests, lifetime gifts or assets held in trust.

Gifts to a spouse or civil partner and gifts to charity are generally exempt from inheritance tax. Other allowances may also be available, including the nil rate band, the residence nil rate band and allowances transferred from a deceased spouse or civil partner. The availability of these allowances depends upon the particular circumstances, so appropriate advice should be taken. Tax efficiency is important, but it should be considered alongside your wider intentions and the practical needs of those you wish to benefit.

Has the Will been signed correctly?

A Will must comply with strict signing and witnessing requirements to be legally valid. It should be signed in the presence of two witnesses who are both present at the same time, and each witness must then sign in the presence of the person making the Will.

A beneficiary, or the spouse or civil partner of a beneficiary, should not act as a witness.

The original signed Will should be stored safely, and your executors should know where it is kept. It is preferable not to attach other documents to the original Will, as marks left by removed staples or paperclips can cause questions during the probate application.

When should a Will be reviewed?

A Will should be reviewed whenever there is a significant change in personal or financial circumstances. This may include marriage, divorce, the birth of a child or grandchild, the death of an executor or beneficiary, the purchase or sale of a property, a substantial change in wealth or a change in family relationships.

Marriage will usually revoke an existing Will unless the Will was made specifically in contemplation of that marriage. Divorce does not revoke the entire Will, but it generally affects gifts and appointments made in favour of the former spouse.

Even where there has been no obvious change, it is sensible to review a Will periodically to ensure that it continues to reflect your wishes.

A properly drafted Will provides clarity for your family and loved ones and can make the administration of your estate considerably easier. Taking advice at the start of the process helps ensure that the Will is valid, deals with the whole estate and produces the result you intend.