The most important advice is to make one! The purpose of a Will it to:
- appoint your executors - someone you trust to administer your estate
- distribute your property. This determines who will receive it and how it will be divided after your death. What specific items will be left to particular people
- provide for any surviving children aged under 18 and to name a guardian(s) for them. Money should be provided to ensure that they have financial support
- mitigate inheritance tax
If you die without a Will (intestate) there are strict laws about to whom and how your estate is distributed. It will be distributed by a court-appointed administrator. Your property (money and other assets) will be divided amongst your surviving spouse, children, and possibly other relatives. This will be done in whatever way the court determines and can cause two problems. Firstly, the property may not go where you want, so you will not be able to give it to non-relatives or to exclude relatives. Secondly, it could be inefficient for inheritance tax purposes. Your estate could end up paying more money to the Government.
In the event that you have no relatives, your property will go to the Government rather than to a friend or your choice of charity. So it is essential that you draw up a Will. This does not need to be expensive or time consuming.
Appointing an Executor
An executor is the person you have appointed in your Will to be responsible for handling your estate and ensuring that your wishes are carried out after you die. Usually you would appoint more than one executor.
When appointing executor(s) it is not only important who to choose but to consider what fees might be involved. Also what any agreement involves allows them to do. Fees from using professional services such as a bank can be enormous. So check out their fees and agreement before appointment. This would diminish what property is left for distribution.
The Duties of an Executor
The executor has the following responsibilities:
- collecting together all the assets of your estate
- valuing the estate
- applying for a grant of probate
- ensuring that all your debts, bills, inheritance taxes and funeral expenses are paid out of money in the estate
- distributing the remainder of your estate in accordance with your Will
- maintaining an accurate record of actions undertaken
- providing to the beneficiaries a full account of the distribution of the deceased’s property.
Choosing your Executors
The people you appoint as executors must be chosen with care. This job involves a great deal of work, time and responsibility. It may take a long time to finalise matters, especially if trust are involved.
To be an effective executor they should meet the following criteria. They must be:
- honest and trustworthy
- willing and able to take on the responsibility
- familiar with financial matters
- likely to out-live you
Number of Executors
In the UK you can appoint up to 4 executors. In practice the general guidance for most people is to appoint two.
Professional executors have the advantage of having one's estate administered by an experienced expert. However, fees are also incurred which must be paid out of the estate.
Professional executors include:
1. Accountants - Provide professional expertise in financial matters. The accountant's fees would be paid from your estate.
2. Banks - Many banks offer an estate administration service. Fees vary, but are usually higher than those charged by a solicitor or accountant. Avoid the Royal Bank of Scotland
3. Solicitors - Someone with relevant legal experience and expertise manages your estate. The solicitor's fees would be paid from your estate.
4. The Public Trustee - The Public Trustee is a government official who has the power to act as an executor, if appointed in a Will, or as an administrator when a person dies intestate.
The Public Trustee
The Public Trustee can do most things that any other executor can do, such as apply for probate. The Public Trustee can’t be your executor if:
- executing your estate involves managing a business
- your estate is insolvent, eg the debts are more than the assets
Name the Public Trustee as executor when you write your will. Send a copy of the will and a letter explaining your situation to the Public Trustee. They’ll decide whether to accept the appointment after you die.
Changing your Executors
It might become necessary to change your appointed executors. For example if your
- intended executors have died
- intended executors have left the country
- intended executors are no longer able or willing to take on the responsibility
You can change your appointed executors by writing a:
- new Will
- a codicil
With more and more of our lives going online digital assets are an integral part of a person’s property. This can range from computer or mobile device access, bank accounts (PIN numbers for cards – important for getting funds from an ATM or online account access using a card security reader), share dealing, insurance policies, emails, social media accounts and so forth.
It is absolutely essential that an up to date record is kept of web addresses, user names and passwords that are used online or via an app. Any master passwords are kept somewhere safe for the executor. The web url, user name and password for email accounts is particularly important. If a forgotten passwords or user name is requested then those details will only be sent to the registered email address. You need access to retrieve them! With such information the executor can fulfill his duties more efficiently. Digital assets such as photos could be downloaded so that they could be passed to beneficiaries.
Recording Digital Assets
A register of websites, passwords and user names can be kept in a document or spreadsheet located with your Will.
Another alternative is to use a password manager such as Keepass. This software has a master password that unlocks access to the information contained within the manager. This typically would include details of a website, user name and password to be stored within an encrypted file. The executor would need to be able to find the latest Keepass manager where you have stored your information and know the master password. For more detailed information see Digital Assets
Drawing up a will
There are numerous low cost online services such as Which? who can help you draw up a will for a reasonable sum.
Signing a Will
All Wills must be signed (executed) and the signatures witnessed by people who are not beneficiaries, or closely linked to beneficiaries, under the Will. In the UK only wills executed on paper are legal.
Free or Reduced Cost Willis
These can be obtained through:
- Trade unions and employers
- Included in home or car insurance legal cover
- Individual Charity schemes
- Free Wills Month
- Will Relief in Scotland
- Low Cost Solicitors Wills
- Online solicitors
- DIY wills
A comprehensive list can be found on moneysaving expert.
Free Wills Month – Every March & October
Free Wills Month brings together a group of charities and solicitors across England and Wales. This offers people aged 55 and over the opportunity to have a simple will written or updated free of charge.
An up to date will written by a solicitor ensures your wishes are respected. Also difficult decisions and legal complications for your loved ones can be mitigated. Wills should be drafted such that Inheritance Tax issues are avoided. Involving a solicitor or accountant can ensure that your will is suitably structured to minimize such tax issues.
Will Aid – November
Will Aid teams up with over 1,000 solicitors to provide basic wills. There’s no minimum age on who can get one. Whist there's no set fee but Will Aid hopes you'll make a donation of around £95 for a single will or £150 for a couple.
Insurance Policies & Wills
Check whether any insurance policies provide will services. For example, the UK insurer More Than has a £20 home insurance bolt-on legal service. This gives access to a range of wills and other legal template documents. Complete your details and the will is checked by a legal team, who'll send it back to you for signing.
Institute of Professional Will Writers
If you are not using a solicitor then consult The Institute of Professional Will Writers website. It is a self-regulatory body to safeguard the public from unqualified practitioners and unethical business practice. It is the recognised professional body regulating and promoting the profession of Will writing in England, Wales and Northern Ireland.
The Law Society
The Law Sociey has a Find a Solicitor service. This can help you find a solicitor to help you draw up your Will.
Keep your Will up to date
Wills should be reviewed at least every five years. It must be reviewed after any major event such as getting married, divorced, separated having a child, obtaining a large amount of money or moving house.
Minor changes or additions can be made as codicils to your existing will. Major changes will involve a new will being drawn up. To ensure no mistakes are made consult your Will writer.
Challenges to a Will
Challenges to a will are increasing. This is due to poorly qualified will writers as well as an increasing number of DIY and online wills. To avoid this it is recommended that you use a qualified person form the Institute of |Professional Will Writers or solicitor to draw up your will. If your will is challenged it is could have an adverse effect on those befitting from your estate.
Possible challenges to a Will
1. The Will is unfair:
Lgislation provides for challenges on the basis that the Will is not fair to family and dependents. A wide range of people could make a claim/challenge:
- person with whom the testator/testatrix (the person who has written the Will) co-habited as husband/wife within the past two years
- former spouse who has not re-married
- child (even an adult one)
- child treated by the testator/testatrix as his/her own by virtue of marriage
- any other person who was dependent, wholly or partly, on the testator/testatrix.
2. The Will is not valid:
Challenges that could be made that the Will is not valid are that:
- the testator/testatrix did not have testamentary capacity when the will or codicil was made
- the formal requirements for executing a will were not followed
- there was undue influence on the testator/testatrix when they made the will (e.g. that they were coerced) or
- there was fraud or forgery.
Storing your Will
Once your Will has been drawn up, signed, dated and witnessed, it should be kept in a safe, easy to access place. This is a very important legal document. Any damage to the document can lead to challenges made in court and legal problems with the administration of your estate. Loss of the Will document will cause even greater problems as there will be no formal record of your wishes.
There is no legal requirement to store your Will with a government department or registry office. It is up to you to decide on the best place to store your Will.
Where to store a Will
Wherever your Will is stored, it is essential that it is in a safe and secure place. Make the executor aware of where it is and how it can be accessed.
The Principal Probate Registry
Your Will and any codicils can be deposited with the High Court and have it stored at the Principal Probate Registry. There is a charge for storing your Will with the High Court.
Storing your Will with a solicitor is ideal if they are also your executor. Most solicitors offer secure storage for your Will for a fee. Some people prefer to store their Will with the Principal Registry Office, since solicitors can move offices or cease trading. This could make your Will difficult to find when it is needed.
At a bank
Some banks offer secure storage facilities and provide clients with the option of storing their Will for a yearly fee.
At home in a safe place
If you choose to keep your Will at home, there is no guarantee that it will be protected from fire, theft, flooding or pests. You will need to tell someone you trust where you have put it, so that it can be found when you die. This is very important. If the original, signed Will is not found, your estate would normally be treated as if you had died intestate. Consequently your property might not be distributed according to your wishes.