What is a Will?
A Will is a legal document that specifies what is to happen to your money, property and possessions after your death, and who is to deal with these issues for you.
What happens if I die without making a Will?
This is called dying “intestate
” and the law then says who gets what and who administers your estate. This situation often leads to problems and upset for your relatives/partner and/or close friends, as they could miss out on part or all of your estate. If you did a Will you ensure that the people you want to share in your estate get what you want them to have.
Do I need a Will if I am married and want my spouse to inherit all of my estate?
Here at Kirkham Legal we would always advise that you did a Will in such circumstances, so as to ensure your wishes are met and to give you peace of mind. If you did not have a Will in such circumstances, then it is possible that part of your estate would not pass to your spouse, but this does depend on the amount of money involved in your estate. Further, a Will would enable you to appoint your chosen executors who could, if you felt it necessary, administer your estate instead of your spouse. Another advantage of leaving a Will is that you could make provision for substitute beneficiaries in the unlikely event of both yourselves dying at the same time.
Do I need a Will if I just want to leave my estate to my children?
It is always advisable to prepare a Will, as your present circumstances my need special consideration. For example, where children are concerned, you need to decide what age they are to inherit (popular ages being 18, 21 and 25), because if you died intestate your child (assuming you were not survived by a spouse) would inherit at 18, which you may not feel appropriate. Further, in a Will, you can appoint executors to look after the money on behalf of the children, until they attain the age specified in your Will. A Will becomes even more important if you have a child (or indeed any other beneficiary named in your Will) under a disability which means they cannot, or might not be able to, manage their own affairs. In those circumstances, particular consideration should be given to the possibility of a Discretionary Trust being included in your Will. This is more complicated than a standard Will, but we can explain this to you before you decide whether or not to proceed.
Would my partner/cohabitee receive my estate if I died without a Will?
Irrespective as to how long you had been living together, your partner would not automatically share in your estate under the very rigid intestacy rules. This is the area that leads to most injustices occurring, causing considerable distress in what is already an upsetting situation. Your cohabitee could consider issuing proceedings under the Inheritance (Provision for Dependants) Act 1975 for a share of your estate, but this is expensive and time consuming. This situation can and would be avoided by you and your cohabitee/partner preparing Wills, the cost of which pales into insignificance when compared to the cost of a legal action under the Inheritance Legislation.
What is an Executor?
An executor is the person appointed by you to carry out the terms of your Will. Naturally, it is a very important role and therefore you must choose your executor carefully.
How many Executors do I need?
Obviously, you need at least one executor and the maximum number that can be appointed by the Probate Registry is four. In a well drafted Will, provision will be made for your main chosen executor or executors, with substitute executors also named if needed. This is most common where a husband and wife prepare Wills leaving everything to each other and for the other to be the sole executor, with the substitute executors (normally their children) stepping in upon the death of the survivor. Generally speaking it is advisable to have at least two executors so that they can share the burden of the job of dealing with your estate, and to ensure continuity in that role if, for example, one died before you or was unable or unwilling to help at the time of your death.
What does an Executor do?
An executor does a very importantjob-they sort out your estate when you die. Their authority arises at the time of death by virtue of your Will. They will sort out your funeral arrangements, the registration of death, ensure that your house continues to be insured (this is often overlooked), notify your asset holders and creditors, value the assets and liabilities in your estate, secure your property and personal possessions, apply for probate of your Will, which once obtained means they can then sell your house, close your bank accounts, sell your shares etc, pay your debts before proceeding to pay the balance of your estate to your chosen beneficiaries. They will have to account to the beneficiaries for all monies passing through their hands, and this is normally done by the production of Estate Accounts which are approved by the beneficiaries before the estate is distributed. Executors normally therefore approach a lawyer for assistance, and it is important to note that the legal fees are recognised as a reasonable deduction from the estate, so the executors do not pay those fees personally.
If I appoint an Executor does this person have to accept this appointment when I die?
The simple answer is no. This is why it is imperative that you choose your executors carefully, after taking into account all of your personal circumstances, and for particular thought being given to the appointment of more than one executor, and to the appointment of substitute executors.
If I am leaving someone a gift in my Will can they also be an executor?
Yes it is possible for a beneficiary also to be an executor of your Will. Indeed, this can be seen as preferable, as it gives your chosen executor a vested interest in dealing with your estate, as the sooner it is dealt with, the sooner they will receive their gift! Please note however, that you do not have to leave a gift to your executor, it is simply down to your personal wishes.
What happens if I die and my executors have also died before me or are unwilling or unable to act?
In such a case, the order of who is entitled to apply to administer your estate is governed by the Non Contentious Probate Rules, and for example one or more of the beneficiaries could apply. As this is a potentially complicated area, and we at Kirkham Legal would thereby suggest that legal advice is taken at that time.
What if I do not have anyone to appoint as an Executor?
If this is the case, then you should consider a professional appointment, and the lawyer who is preparing your Will can confirm whether their legal firm will agree to act. Most law firms, and Kirkham Legal certainly do, will accept an appointment as Executors. Upon your death, the legal firm then assumes responsibility for dealing with your estate (from following your funeral wishes to finally paying out to the beneficiaries), with their fees ultimately being deducted from your estate before the final payment to the beneficiaries.
What type of gifts can I make in my Will?
Essentially you can make whatever gifts you want, as long as your Will is clear in its terms and the gifts are legal. You can leave specific gifts such items as jewellery, cars, collections etc but the items to be gifted must be clearly explained as any doubt is likely to invalidate the gift. You can also make cash gifts, but you should be aware that these cash gifts will be paid out of your estate before the balance (which is called your “residuary estate”) is paid to your residuary beneficiaries, so if the value of your estate is likely to change in the future this should be borne in mind. Some people therefore prefer, rather than giving cash legacies, to give percentage shares of their estate to their chosen beneficiaries. You can give away your home, whether it is the one existing when the Will was drawn or the one that exists at the time of your death (and again the Will needs to be carefully drafted), and you can event grant someone a”life interest” in your home if you want that person to be able to live there for the rest of their life but without the house belonging to them, so that upon the termination of that life interest the house then passes to a different beneficiary. We at Kirkham Legal have considerable experience in drafting such Wills and would strongly advise that legal help is obtained if you are considering such a Will. A properly drawn Will should also include a residuary beneficiary, who in simple terms receives what is left of your estate once all other gifts, debts and tax have been paid. The residuary beneficiary often receives the largest portion of the estate. People sometimes also chose to make charitable gifts in their Wills, and these can be cash, specific items or even the residue depending on your personal wishes. If you are wanting to make a charitable gift, please speak to a lawyer as the charity should be described as accurately as possible with an address and the registered charity number, so as to prevent that gift failing.
What happens to a gift it the beneficiary dies before me?
The gift would lapse, unless the will was drafted so as to pass that gift onto another person. However, if the gift is to your child or remoter descendant, then under the provisions of the Wills Act 1837, the gift would pass down the family line to such of the deceased beneficiaries’ children.
Can a Witness to my Will also be a beneficiary?
No, a gift to a witness to your Will (or indeed their spouse) is null and void. If your Will is professionally prepared, the lawyer will arrange the witnesses for signature purposes so as to prevent such problems arising.
Who can witness a will and how many do I need?
As stated above, a witness should not be a beneficiary or married to a beneficiary. You need two witnesses, who should both be together with you when the Will is signed. Again your lawyer will be able to arrange for the witnesses, should you choose to have your Will professionally drawn. It is very important that the rules relating to the signing of your Will are closely followed.
Can I do a Will without a lawyer?
Yes you can. Wills can however be very complicated and if you want to avoid the many pitfalls, then our advice is for your Will to be prepared by a lawyer.
Once done, can I change my Will?
Yes you can change your Will at any time, as long as you have the mental capacity to do so. You have the option of preparing a Codicil to your Will (which has to be signed and witnessed in the same way as a Will) or reviewing and re-drafting your original Will. We at Kirkham Legal advise all our clients to review their Wills at least every three years, just to double check that everything is still correct. You do not have to change your Will if addresses have changed, but please note that if old addresses remain in your Will it may make it more difficult for your executors to trace the beneficiaries.
Once completed where should I keep my Will?
You must keep your Will in a safe place, but not so that it cannot be found when you die! Here at Kirkham Legal, we offer a service where we securely hold your Will free of charge. The Will can be released to your executors upon your death as long as they produce your death certificate and prove their identity to us. We will also at that point give them some guidance as to what needs to be done to administer your estate, and obviously we will gladly accept instructions to deal with the estate, or even just apply for the Grant of Probate on their behalf.
What can I do if I hold my own Will or if my Will is with another Solicitor or bank?
If you want Kirkham Legal to look after your Will, just contact us and we will store your Will free of charge. You will be given a receipt and, if at the same time you wish to review your Will, we will quite happily have a chat with you.
How expensive are Wills?
In our experience clients are generally surprised as to how cheap it is to prepare a Will, so much so that they often comment that they should have done a Will years ago! The actual cost will be provided to you at the outset, without obligation, when we have spoken to you to ascertain your requirements, as some more complicated Wills attract higher charges simply because of the amount of work involved.
Can I make a provision in my Will for someone to manage my affairs whilst I am still alive?
No, the Will only becomes operative when you die. What you need is a Lasting Power of Attorney
, and we as a matter of course will discuss if this is appropriate when we meet with you to take instructions for your Will.