I am often asked by clients –
As a long in the tooth practitioner I often forget how stressful the thought of making a Will can be. Here’s some notes that I hope will help.
• What do I need to make a Will?
• How do I go about it?
• What do I need to think about?
Whilst every Will is different, unique and personal. There are many features common to all Wills. Let me explain.
- The Testator.
We start by naming the Testator – a formal title for the person making the Will. Or to be even more formal the Last Will and Testament.
So, dear client; You are the Testator, this is the legal term for an individual who creates a will. In the past, you would have also seen the term “Testatrix,” which was traditionally used to describe a female individual who created a Will. However, this term is old-fashioned and the term Testator is now used for both males and females.
When you make a New Will and correctly ‘execute’ the same (correctly date and sign the Will) this automatically revokes a former Will. Meaning that any previous Will is no longer valid
When a person (the ‘Testator’) makes a valid Will, section 20 of the Wills Act 1837 states that it can only be revoked in three ways: by the Testator making another Will or codicil; by them signing a revocation provision (a professionally drafted Will will always include this provision) or by destruction.
Kindly note, all Wills prepared by us will always contain the provision that formally revokes any formerly drafted or prepared Will, so this document is your new Will.
- The Revocation Clause
As mentioned above all our Wills contain a clause which revokes (cancels) any previous Will and declares this new Will to be your last and current Will.
An Executor is the person or persons who will carry out the administration, or enact the wishes contained in our Will after your death. They attend to the administrative tasks following your death and deal with your assets.
Their job is to collect all your assets – money, stocks, shares, sell your house, pay off any debts and or tax applicable to your estate and then, when all the assets have been accumulated and the debts paid distribute the estate in accordance with the wishes stated in your Will.
• Locate and identify all assets and liabilities of the estate
• Deal with the administration of the estate according to law by collecting these assets
• Locate the beneficiaries
• Apply to the probate registry for a grant of Probate of the Will. The Probate Certificate is a formal document confirming the names of the executors and gives then permission and authority to administer the estate (property cannot be sold without proof of Probate and some banks require sight of the Probate Certificate before releasing funds to the executors.)
• Pay off all debts and any claims on the estate if substantiated
• Arrange for the distribution of the estate in accordance with the terms of the Will
• Prepare Estate Accounts – these being the detailed spread sheet of the assets and debts of the estate that allow an assessment of any Inheritance Tax that may be due on the estate.
• Deal with taxation of the estate.
• If a trust exists in the Will, then the Executors are also appointed as Trustees and they will have to manage any trust, hold money on trust for any children to attain the age specified in the Will, or until the child is 18. The Will must give the Trustees power to pay monies for maintenance or education or any conditions to meet the child’s needs that have been created by the Will.
If these tasks seem overwhelming you can always appoint a professional solicitor or advisor to assist with the administration of the estate.
- Your Estate
Everything owned by a person who has died is known as their estate. The estate may be made up of: money, both cash and money in a bank or building society account. This could include money paid out on a life insurance policy. money owed to the person who has died.
You can, of course, do what you wish with your estate. Many people leave charitable gifts but the usual provision is to take care of a spouse and all surviving children.
A beneficiary is someone who is named in the will as someone who will receive a benefit or gift from the person who has died. A properly written will should make clear what each beneficiary is to receive
We suggest, that your main beneficiary is your spouse, then children and then wider issue. (relations)
A specific gift is a particular item or sum of money that you wish to give someone in your Will, for example, a house, a piece of jewellery, £10,000. It is important that the gift is described precisely in your Will, so that the executors can understand exactly what you intended.
- Charitable Donations and Giving.
I have been appointed by CRUK and The National Free Wills Network as a professional Will Writer. I have been carrying out this role for the past 9 years and have written literally hundreds of Will containing charitable donations within them.
If you make a charitable gift (or various charitable gifts) in your Will, there is tax relief; those charitable gifts are Inheritance Tax free. Further, if 10% or more than 10% of your estate is left to charity, the rate of Inheritance Tax applicable to your entire estate can be reduced from 40% to 36%.
I can discuss this in more detail should you require
- The Residuary Estate
In most Wills after debts and any inheritance tax have been paid, the estate is shared among the beneficiaries in accordance with the will. The residuary estate is whatever is left of the deceased’s estate after all specified gifts have been handed out and debts, funeral expenses, and taxes have been paid.
Most Testators leave the residue (what’s left) of their estate to their surviving spouse or children, if they, or you, have them. Of course, you can do whatever you wish with your assets. That’s what a Will is their to do.
- Funeral Wishes
We can include your funeral wishes in your will. However, under current law, funeral wishes in a will are not legally binding. The executors appointed in a will have ownership of the body and are technically considered the decision-makers with regards to funeral arrangements. We suggest you discuss with your executors any arrangements you wish to make, and set these out in your Will as a direction.
- STEP Provisions
We include the STEP Provisions in our Wills. (STEP are the Society of Trust and Estate Practitioners.) You may have seen ‘old style’ Wills where every power or act of a Trustee or Executor was written out in long hand
STEP has published the Third Edition of its Standard Provisions. The STEP Standard Provisions are a set of ready-made clauses that can be inserted into a will. They provide protections and powers that enable the executors or trustees to effectively deal with the estate we include these powers by referencing their inclusion in your Will.
If you wish to study the detail, please use this link
In certain circumstances we may chose to amend the provisions and we will explain this to you as necessary.
- The Attestation Clause
A well drafted will always contains an “Attestation Clause” at the end. This will set out when the will is signed, who signed it and who witnessed the will. Further, it will describe accurately how the will should have been executed.
If a will is correctly executed, it has formal validity (that is, it is recognised as a valid testamentary document).
If a Will has not been correctly signed and witnessed it is invalid and this can lead to problems applying for probate. There are provisions to allow the making of affidavits to explain why the Will was incorrectly executed. This can be a costly time consuming exercise, which is why the correct procedure should always be followed. We will explain this to you in person.
- Copies of your Will
We will provide original copies of your Will for you to keep in a safe and secure place. We will provide a copy for your Executor and Trustee
We do not currently store Wills. As we don’t wish to charge you for this service. Plus we might lose them. (I’m joking)