Protecting & passing on wealth

Publish date

21 March 2023

Making a will, key considerations

When is the right time to draw up a will?

Once you have acquired an asset, no matter how big or small, a will should be prepared.  It is the only way to guarantee that your assets pass to the beneficiaries of your choosing.

Many young professionals are under the misconception that they do not need a will or think they are too young to think about a will, both of which are incorrect.

In addition to having a will, if you have an asset, you should have Lasting Powers of Attorney in place too which gives the power to deal with your assets should you become incapable of doing so through accident or illness.

Why is having a will important?

Unbeknown to many, the Government has written a will for you.  These are called the intestacy provisions, which specify how your estate passes if you die without a will (and can potentially be Inheritance Tax (IHT) inefficient).

A will not only governs financial assets but allows you to appoint a guardian for minor children, deal with business / farming interests and can deal with worldwide assets (depending on the nature and location of the assets).

What are the main assets which can be dictated by a will?

All assets can be dictated by will, with the exception for assets owned as joint tenants, which pass automatically to the surviving owner.  If you have assets in more than one country, it may be necessary to have more than one will as well, and so it is always a good idea to take specialist advice.

What are some of the common mistakes people make when drawing one up?

Not taking appropriate advice.  The administration of estates and trusts are complicated and many people assume the rules are simple and attempt to draft a will themselves or by using a will writer (who often have no legal qualifications).

A will is the most important document you will ever sign and it is therefore imperative appropriate advice is taken.

How regularly should it be reviewed?

Generally, every three to five years, or unless your circumstances or assets change, should this be sooner.

Must you always use a solicitor? What happens if you can’t afford one?

No.  However, the administration of your estate is governed by law, and with the rules on estates, trusts and tax being complicated, the cost of using a Solicitor is warranted.

If you cannot afford a Solicitor, there are other alternatives available (see above).

How should you choose an executor? Does it have to be a family member?

Executors should be chosen with care.  They have a fiduciary duty to the beneficiaries of your estate.  The key with the appointment is to trust those being appointed.  The executor(s) does not have to be family members (and it is sometimes not appropriate to appoint family members in certain circumstances).   The role of Executor can be an onerous one and you may want to consider asking those you would like to appoint before signing your will.  A professional person can also be named as an executor as well and this may be sensible for complicated estates                .

If you do not have a will, the intestacy provisions specify who is entitled to administer your estate and apply to the Court for a Grant of Representation (which gives them the legal authority to administer your assets).  This may not be who you would choose.

Do you need a solicitor with specialist experience?

If you want to ensure your will achieves your wishes, is comprehensively drafted and is IHT efficient, yes.

Should you tell your family you have a will?

You should certainly tell your executors you have a will and where the original is stored. If your executors are not family members, you ought to tell someone in your family that you have a will and who to contact in the event of your death.

What happens after you’re gone (assuming you have a will in place?)

The assets in your estate vest in the Executors who then become responsible for administering your estate in accordance with your will and distributing your estate to your beneficiaries.  This will require an IHT return together with an application to the Court for a Grant of Probate which confers the legal authority to the Executors to deal with your assets and ensure they end up with your intended beneficiaries.

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