Wills and estate planning

In this section of the website we explain important aspects of Wills and estate planning. Contact Charles James for help with planning your estate.

Top tips for clients about Wills

• If you don’t have a Will, make sure you know what will happen to your estate if you die without making one.
• Be clear which UK laws apply – England & Wales, N. Ireland or Scotland.
• Before making a Will, think about what you want to happen to your estate.
• Before making a Will yourself, think about taking advice from a solicitor or professional Will Writer.
• Review your Will regularly – particularly if any of your circumstances have changed.
• Never attempt to change a Will by writing on the original!
• Make sure your chosen executors are happy to act in that capacity. Make sure they know where the Will is kept and if there are any special arrangements you want them to carry out quickly on your death such as funeral arrangements and organ donation. Time may be of the essence.

Why is it important to make and regularly review your Will?

• It is the only way that you can indicate who you want to benefit from your estate.
• Unmarried partners may not benefit if there is no Will.
• If you have minor children, you can indicate in a Will who you would like to look after them should you die. This is particularly important where a relationship has broken up and the relationship between the individual and former partners is not good.
• If you circumstances change it is important to make sure that your will reflects your new circumstances.
• Making a will can mean a different inheritance tax (IHT) treatment of your estate or a change in the way that assets are assessed for means tests purposes should you need long term care.

What happens if you do not make a Will?

• You will die intestate.
• The rules of intestacy are different in different parts of the UK so it is important to keep up to date on the current position as this can change.
• The rules of intestacy may mean that the people you want to inherit from you don’t or in a different proportion from what you would want.
• This is particularly important in Scotland where there are things called prior rights and legal rights. Make sure you are aware of the position where you live and indeed if you have assets in another country. France has similar rules to Scotland with regard to prior and legal rights.

Who can make a Will? 

• Everyone aged 18 or over (12 in Scotland) or a serving member of the armed forces can make a Will if they are of sound mind.
• If you are serving in the armed forces and below the age of 18 you should take legal advice.
• Even people who are deemed not to be of sound mind can make a Will or a codicil to an existing Will if approved by the court of protection.

Do I have to use a solicitor to draft a Will?

• You don’t have to use a solicitor but we would strongly advise that you take professional advice.
• At the very least use an individual who can provide you with a properly drafted Will, especially if your Will is complex.
• You will want to avoid your executors/personal representatives any added stress, in a time of grief, of sorting out mistakes after you have died.

How much does it cost to get a Will drafted?

• Cost is dependent on the complexity of your Will.
• Before you meet an adviser give some thought to what you want to happen to your estate.
• Who do you want to act as your executors/personal representatives?
• Always consider the ‘what if’ scenario: what if a chosen beneficiary predeceases me etc.?
• It may be possible to get a cut price Will or some help towards the costs. There are however conditions involved – in many circumstances monetary assistance is means tested.
• Who are your executors and what are they expected to do?They will be responsible for carrying out the instructions in your Will and sorting out your estate.
• You will appoint them in your Will.
• You should consider appointing at least two executors and, in any review of your affairs, consider your executors.
• Consider carefully before appointing people older than yourself as they may predecease you. However, this could happen to anyone.
• Choose carefully as the job involves quite a lot of work and always consult you executors as to whether they would be willing to act in that capacity – they may not.

Who can witness your Will?

England and Wales:

• Anyone who is 18 or older, is not blind and who understands what they are signing.
• There should be two witnesses who should sign the Will as witness in your (the person making the Will’s) presence.
• Their signature should be made after you have signed it and neither they nor the person to whom they are married or are a civil partner to can benefit from your Will although this in itself will not invalidate the Will.
• The Will should be dated though that is not necessary for the will to be valid.
• As soon as a Will is signed and witnessed it is valid.

Scotland:

Some of the rules are different in Scotland.

• You must sign the will on every page though the witness need only sign on the last page below the signature.
• The witness of your signature must be at least 16 and know you.
• While the witness can a beneficiary under your Will, it is probably not advisable as it makes it more likely that the Will can be challenged.

Can a Will be revised?

• Yes it can.
• You can destroy your existing Will and draft another or add a codicil to your existing Will.
• A codicil should be witnessed in the same way as the original one but needs not have the same witnesses as the original.
• If any changes are substantial then a new one should be considered revoking the original (but not any ones dealing with assets in another country necessarily).
• Don’t make written alterations on the original copy of the Will – add a codicil or a make a new one.
• Remember to date any codicil and keep it with the original.

Can I do anything to make my executors lives easier when I die?

Yes you can. Help your executors by making it easy to know:

1. what your assets are,
2. where they are
3. and how they are owned – for example are trusts involved or are any of the assets owned jointly?

You might want to think about completing a dying tidily log, reviewing it regularly and keeping it with your Will so it is easily available to your executors.

 What should you do with regard to assets in other countries?

• It is generally a good idea to have separate Wills established in the country in which each asset is situated.
• It should be stipulated that the Will only deals with the property or assets situated in that country.

When is a Will automatically revoked?

• A Will can be revoked by the provisions in a later Will or codicil – one of the reasons to make sure all Wills are dated.
• It will also be revoked if it is destroyed.
• If you make a new Will, make sure you include that this Will cancels all existing Wills in the UK and not involve any Wills in any other country referring to non UK asse

What happens if you marry?

• Under English law, a Will is automatically revoked on marriage unless it is specifically drafted in anticipation of the marriage.
•  A Will is not automatically revoked on marriage in Scotland.
• It does make sense to review your Will if a change of circumstances such as this occurs – primarily to ensure that the current spouse is catered for.

What happens if you get divorced?

• Legacies to an ex-spouse or civil partner are not automatically revoked under Scottish law.
• As with getting married though, it again makes sense to review your Will when circumstances change dramatically like this.

What happens if you have more children?

Under Scottish law, if you have a child after you have set up a Will and there is no provision for that child in the Will, the child can ask that the Will be set aside, better perhaps to make a bequest to your current and future children. Such general phrasing could cause problems too however, if it is possible that you have children that people are not aware of.

 What happens if someone feels you haven’t made a reasonable provision for a child in your Will?

•  In the UK (other than Scotland) you can leave your estate to whoever you want, although a spouse or dependent can put in a claim to the courts if it is thought that insufficient provision has been made in the Will.
• This is generally restricted to the degree of financial dependence on the deceased.
•  In Scotland there are legal Rights and Prior Rights to consider.
• Whatever you may write in your Will, your widow, widower or children can apply for legal rights after you die. Even if an individual leaves everything to a surviving spouse for example, the children or children of a deceased child can claim one third of the moveable estate (money, shares etc.).
• The children don’t have to make a claim for legal rights but if they do then the surviving spouse’s legacy will be affected.
• Even if a child is not able to claim, a share of the fund will be set aside for him/her until the age of 16 is attained. Legal rights would then have to be claimed within four years.

Where should I keep my Will?

The most popular places are as follows but bear in mind that some will charge you for storing your Will:

• Your solicitor
• Your Bank
• The principal registry of the family division
• Yourself (make sure you let the executors know where it is kept).

What should I do if I want a specific type of funeral or wish to donate my organs for transplant or research?

• You could write a letter to your executors explaining what you want to happen and tell them where they can find this letter when you die.
• Keeping it with your Will might be an idea but this may cause unacceptable delays as the Will may not be read until after the funeral.
• You may wish to discuss all this with your executors beforehand and direct them to read the letter as a priority should you die.