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Probate and Will, Trust & Estate Disputes

Publish date

9 May 2022

How to make a will

Your will is one of the most important documents you will ever sign.  The benefits of signing a will include not only the fact that you can decide who will inherit your estate, and on what terms, but that you can ensure that your estate passes to your intended beneficiaries in the most tax efficient manner.

If you die without a will, your estate will pass in line with the intestacy rules.  A popular misconception among married couples is that without a will everything passes automatically to the surviving spouse*.  This is not necessarily the case.

Using a solicitor to write your will has additional benefits: you will receive advice on your inheritance tax (IHT) position, and how you can improve it.  This can take the form of planning during your lifetime (for example by making lifetime gifts) but also in your will, to maximise the use of available reliefs and exemptions.

In addition, your will is less likely to be one of the increasing number of wills being challenged in the courts.  Common grounds for a challenge include failure to provide for certain beneficiaries, ambiguous or unclear wording or even the testator’s capacity to sign a will.  Your solicitor will consider with you any beneficiaries for whom you may be expected to provide, and also review your personal circumstances to ensure that any challenge on the grounds of capacity is less likely to succeed.  They will then draft a will which reflects your wishes, minimises IHT and includes all the provisions necessary to allow your executors to administer your estate properly.  This will help to save money for your beneficiaries, make the administration of your estate easier, and protect your intended beneficiaries from the cost and anxiety of a challenge to your will.

What should my will cover?

These are some of the points to consider before drawing up your will:

Likely value of your estate

Consider the approximate value of your estate including your house and any land, your personal effects, any savings and investments and any trust assets in which you may have a life interest.  We can give appropriate advice on IHT planning and on arrangements to fund any IHT liability.

Unusual assets or requirements

If you have less commonly held assets, such as shares in private companies, foreign land or an interest under a trust, or have particular requirements in relation to a proposed gift, let us know so that we can advise you appropriately.

Choosing your executors

Although they may be assisted in the administration of your estate by solicitors, your executors remain ultimately responsible for administering what you leave and for carrying into effect the provisions of your will.  It is usually desirable to appoint at least two executors so that if one dies before you, there is still someone available to act.

If you wish, you can appoint Thomson Snell & Passmore Trust Corporation Limited as your executor (see our separate information sheet on the advantages of this).  Alternatively, you may prefer to appoint suitable members of the family to act, whether alone, jointly with the Trust Corporation or with the Trust Corporation as a reserve if those persons die before you, or are unable or unwilling to act as executors.

There is no reason why you should not appoint one or more beneficiaries as executors provided that they are over the age of 18.  Particular care should, however, be taken when selecting executors who may have to administer a continuing trust.

Choosing your beneficiaries

Who do you want to inherit part or all of your estate? List the full names and addresses of all intended beneficiaries (including any substitutes), with a note of the approximate ages of any who are under the age of 18.  Your beneficiaries are likely to fall into one of the following categories:

  • Those (if any) to whom you wish to leave gifts of cash or specific assets (including personal belongings);
  • Those to whom you wish to leave the rest or ‘residue’ of your estate.

We can discuss with you the terms on which they will benefit.

Making funeral wishes

You may not have any particular views on this, but if you do, your will is a useful place to record them although you should also let your family know about your funeral wishes.

You may find our Information Sheet “Wills: frequently asked questions” helpful in providing more information about wills.

Appointing guardians for minor children

Guardians and executors need not be the same persons.  Your guardians will be responsible for the care of your children while they are under the age of 18.  Your executors will be primarily concerned with the financial aspects of your estate.

What are other factors that you should consider when making your will?

The precise terms of your will are likely to be governed by factors such as the size and nature of your estate and the circumstances of your family and the other persons whom you wish to benefit.  We normally recommend that you should try to achieve simplicity in your will.  If you give a large number of small legacies, or if you ask for complicated arrangements, the will itself will be more costly to prepare, and after your death your executors are likely to incur more expense in administering your estate.

Even if you do achieve simplicity in your wishes, you may find that the will which we prepare for you is a fairly lengthy document.  This is because the law relating to wills is complex and technical.  In this context you should note that a continuing trust must be created if you wish your executors to hold all or part of your estate for any specified period of time – for example, until a child reaches the age of 21.  Consequently, a professionally drawn will includes clauses which give suitable administrative powers to executors and trustees and enable them to carry out your wishes properly.

When should you review your will?

While wills are usually drafted so as to be effective for many years – indeed indefinitely – it is nevertheless wise to review your will every few years to take into account changes in circumstances and legislation.

It is not widely appreciated, for instance, that marriage and divorce can have a major impact on a person’s will.  Marriage normally revokes any earlier will unless it was drafted with the specific marriage in mind, while the law provides that certain changes to a will are made automatically on divorce.  In addition, if your circumstances change in other ways (such as having children, or inheriting a substantial estate yourself) it is a good idea to consider whether your will needs to be updated.

* All references to the term ‘spouse’ include a civil partner as defined by Section 1 of the Civil Partnership Act 2004.

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