Making a will at Flackwoods Solicitors (“Flackwoods”) ensures that you make an informed and reasoned decision as to how to provide for your family and friends following your death. In the absence of a will, detailed rules on succession known as intestacy rules apply. These rules may be wholly inappropriate in your case.
Many people assume that if they die without a will their spouse or partner will inherit everything but this is not so. Flackwoods can explain to you how spouses and civil partners may not receive all your property and unmarried partners are not automatically entitled to anything. Other factors have a bearing on who would administer your estate and who would benefit from your estate without a will. It is therefore important that you make a will at Flackwoods and that it is comprehensive.
Important questions to consider when making a Will
Whom do you wish to appoint as executors?
Your executors will be personally responsible for administering your estate. You can have a minimum of 1 and a maximum of 4 executors. Flackwoods believe it is usually best to appoint two executors, with a possible third person named as a substitute. Many testators choose to have one professional executor, such as Flackwoods, and one lay executor with a personal knowledge of the family. Executors may choose not to act at the time the will is administered. If executors start to act then they must see it through until the end. It is advisable to check that an executor is happy for you to include them in your will although this is not a legal requirement. Executors are able to benefit from the will. You may like to guide your executors and trustees in a separate letter of wishes.
Do you wish to name guardians for your children aged under 18?
Flackwoods believe this is a point which should be discussed between parents and with the proposed guardians along with your children if you feel that they are old enough to understand. Guardians will have parental responsibility. This includes decisions such as schooling and religion. It is common for guardians to be able to work with or could be the same persons as the executors. You may like to include guidance on a separate letter of wishes.
Do you wish to leave your body for medical research or do you have any special wishes as to burial, cremation or other funeral arrangements?
Flackwoods believe it is sensible to state these wishes in your will as well as telling family and/or friends. Legally, your executors are responsible for disposing of the body. They can choose to ignore your wishes. It is important to choose someone you trust to carry out your wishes. It is typical to go in to detail about funeral directions on a separate letter of wishes.
Who is to take the main part of your estate under your will?
You will probably want to leave your estate to your family. Gifts under your will can be outright or, if your estate is substantial, in trust. Flackwoods advise any property passing to your children will be held in trust until they reach eighteen. However, your will can provide for your children’s entitlement to be made dependent upon them attaining a later age (say 21 or 25 years old) if you wish, subject to a maximum inheritance tax charge of 4.2% of the value of the trust fund if your child takes at 25 depending on the size of the estate. In substantial estates, more sophisticated and flexible trusts can be established. Minor beneficiaries will inherit their inheritance on attaining 18 years which is laid down in statute. Executors and trustees are not able to hold on to inheritance for longer. You may choose a higher contingent age of, say, 21 or 25. Executors and trustees are able to pay inheritance to the beneficiaries before a contingent age for the beneficiary’s education, maintenance or other benefit.
Do you wish to make gifts of money: for example, to charities, godchildren or others?
Many people are surprised at the total value of their assets and decide to make legacies to people who have been important to them. If you make gifts to charity then Flackwoods can future proof the gift so that it will not fail if the charity changes its name or no longer exists.
Do you wish to make gifts of specific items to particular individuals?
There are a variety of ways of doing this:
- You can give details of specific items for particular individuals in your will and this shall be legally binding.
- You can leave all your ‘personal chattels’ (broadly, personal possessions such as the contents of your house) to your partner or to your executors to deal with in accordance with an informal, non-binding memorandum. The memorandum can be altered by you from time to time without the need to make a new will and is a flexible way of dealing with your chattels; (or indeed you can combine the two arrangements described above).
If a legatee changes address or changes name then the gift will not fail.
What should happen in the event that your partner and children do not survive you?
Flackwoods advise you should include a ‘disaster clause’ to cover the possibility of you and your family all dying together to avoid a situation where the intestacy rules operate because no one benefits under your will. This can be an outright gift or subject to some form of trust. Couples may want to mirror each other’s will by including both sides of the family in both wills to reduce the risk that the combined estate will pass to one side of the family.
What additional clauses need to be included to ensure that your executors can administer your estate efficiently?
There are a number of administrative provisions of a fairly standard nature to be included in a will. Their complexity will depend upon the size of your estate and the other provisions of your will. Flackwoods incorporate the Society of Trust and Estate Practitioners (STEP) provisions in wills.
Are you married or in a civil partnership?
Flackwoods advise a will is automatically revoked on marriage or civil partnership unless it is made in anticipation of that marriage or civil partnership. This means that if you made a will before you were married or entered into a civil partnership it is no longer valid. If you are married and then divorce, your will is not revoked by the divorce but provisions in your will relating to your former spouse are automatically modified. The same rules apply to civil partnerships. Flackwoods advise you to review your will following any change in your circumstances.
Do you have any dependants?
Flackwoods advise, in certain circumstances, a dependant or family member may have a right to claim part of your estate, even if you leave him or her nothing in your will. However, the risk of a claim may be reduced by including a statement either in your will or in a letter accompanying it explaining your reasons for not benefiting a dependant. Including the person being excluded from benefit in pre-death discussions reduces the risk further. Flackwoods advise on the most up to date Inheritance (Provision for Family & Dependents) legislation.
What assets do you own and what is their value?
Flackwoods find that many people are surprised at the total value of their assets particularly with the significant increase in the value of property in recent years. Before making a will, Flackwoods believe it is helpful to compile details of your assets and their approximate values, for instance:
- Your house/flat
- Belongings (known as chattels)
- Any holiday home or timeshare
- Savings accounts
- Pension funds
- Life assurance policies
- Any trust in which you or your family have an interest
How is your home owned?
If your house or flat is owned jointly by you and your partner as ‘beneficial joint tenants’, on your death your share will pass automatically to your partner. This is called the right of survivorship and cannot be altered by your will. A death certificate is needed to administer these assets.
On the other hand, if you own the property as ‘tenants in common’, you can specify who is to inherit your share of the property. Your share is therefore capable of passing by will. A grant of probate is needed to administer these assets.
Flackwoods are able to tell you whether you own your house as beneficial joint tenants or tenants in common. They can also advise on whether you should alter this.
Flackwoods suggest you review your will every 3-5 years or earlier if your circumstances change.
Death in Service Benefit: are you a member of an employer’s pension scheme?
If so, you are probably entitled to a lump sum death in service benefit and you should indicate to the scheme trustee whom you wish to benefit in the event of your death. Flackwoods can ask your employer to provide you with an appropriate form to complete. As death in service benefits are generally outside the scope of inheritance tax, they can be significant when considering inheritance tax planning. For example, directing benefits to a family trust set up by Flackwoods instead of to the surviving spouse. The surviving spouse can still benefit under the trust but it would not be included in their personal estate.
Do you have any personal pension plans?
Any personal pension plan you have will probably also include provision for a lump sum death benefit to be payable in certain circumstances. Flackwoods recommend you make sure that this benefit is nominated or written in trust for the person you wish to receive it.
Life Assurance Policies: Have you assured your life?
It has been possible to mitigate inheritance tax by placing life policies in trust. The scope for this has been affected by the Finance Act 2006 but there still may be opportunities available. Flackwoods suggest you take advice on whether writing such a policy in trust is the best course of action for you. You should consider this early as writing in to trust may be subject to a period of survivorship for full tax advantages.
Many people are taking advantage of making a living will also known as (an ‘advance directive’). This is a document which allows you to plan ahead, should you become ill or unable to make important decisions for yourself. Although there is no legislation at present on these advance directives, this is anticipated shortly. The courts have recognised the validity of advance directives and Flackwoods can advise on their use and appropriateness.
Of the two types of advance directive, one records your wishes regarding the refusal of medical treatment in the event of anticipated events; the other contains a statement of general beliefs and values, which your doctors and family should take into account in the event of your illness.
For initial advice, assistance or for a general chat about planning, whether for you or someone you know, contact Ian Flack on 01403 738777.