Making a Will
Making a Will allows you to ensure your loved ones are afforded for after you pass away. It is an important process with many considerations for you throughout the process of making of Will.
You should consider the following:-
- Executors and Trustees; Who should I Appoint?
- Assets; What are my Assets?
- Spouse or Civil Partner; What happens if my Spouse or Civil Partner Dies?
- Co-Habiting Partners; Can I afford for my Partner in my Will?
- Children; How can I provide for my young Children after my Death?
- Guardians: Do I need a Guardian for my young Children?
- Gifts; How can I Gift in my Will?
- Funeral; How will this be Paid?
- Marriage; What happens if I get Married After Making my Will?
- Inheritance Tax; This may need split to relevant subsections
It is an important process that we make simple through our Free Wills Information Pack.
Request a Free Wills Information now. (link to free wills request box same as that provided for in contact box)
Executors & Trustees; Who Should I Appoint?
Executors are responsible persons who carry out the wishes expressed in your Will and wind up your affairs normally within a year of death. Trustees are responsible for the investment of money or management of assets until your children attain an age between 18 and 25; there must be at least two trustees. The Executors and Trustees are normally the same persons. If your estate is relatively modest and the wishes in your Will relatively simple a member of your family or a family friend would ordinarily be the correct appointment.
However there are various circumstances where having a solicitor as a professional executor can be appropriate:-
- If you have no close family or if your children or other family members are out of the jurisdiction and you require a local competent person to administer your estate
- If your children or other beneficiaries do not trust each other, or have spouses or partners that might unduly influence them to be contentious and/ or are likely to dispute values or entitlements and you consider that an independent professional solicitor as an executor or trustee is the best way to settle and resolve matters and preserve family harmony as far as is possible
- If you have minor children and in the unlikely event both you and your partners die before your children are adults an independent trustee, such as a Solicitor, will be professionally obliged to make sure the children’s money is both used for them and protected and preserved for their maturity. A solicitor trustee will prevent your children’s funds from getting lost amongst the assets of Guardians or other family members
- If you are setting up trusts that are likely to exist for a period of time then a solicitor trustee can provide comfort that the funds will be well managed and secure irrespective of events and family circumstances that may occur during the period of the trust. Solicitors are regulated by the Law Society and are bonded with indemnity insurance and compensation funds providing protection for beneficiaries in such circumstances.
Assets; What are my Assets?
Your assets or potential assets are any solely or jointly held interests in shares, property, savings, accounts, investments or other financial instruments or present or future entitlements you may own or acquire prior to your death. On your death the ownership or disposition of your assets may be effected by your Will and/or by overriding legal claims e.g. jointly held assets passing by survivorship or claims by dependants you have failed to provide for. We will not ask you to detail any or every asset you own in drafting your Will. We will draft your Will pursuant to your direct instructions to us and take or assume no liability or responsibility in relation to the specific disposition of any particular asset unless you have requested us to do so in writing.
Spouse or Civil Partner; What Happens if my Spouse or Civil Partner Dies?
Couples who make Wills at around the same time should consider having the residual clauses operative on the second death the same in both Wills. This will mean that in the event of a joint death in an accident the difficulty of proving who died first does not arise and the element of chance is removed in relation to which side of the family benefits on the second death. It is thus prudent to discuss and agree together who will benefit on the second death and make Wills which benefit the same people irrespective of who died first.
If you make similar Wills with a partner and leave everything to each other and then when the second of you die to subsequent conditional beneficiaries e.g. your children you should appreciate that after your death your surviving partner could make a new Will to new beneficiaries. The survivor of you could remarry. The new husband or wife may then have a claim on the subsequent death of the survivor of you to the detriment of the children of your relationship. If this is an issue of concern to you please contact us to seek advice.
Co-Habiting Partners; Can I Afford for my Partner?
Co-habiting couples do not benefit under the laws of intestacy should their partner die without a Will. Therefore it is important to consider making a Will if you are a co-habiting couple and wish for each other to benefit when you one of you should die.
Children; How Can I Provide for my young Children After my Death?
If both you and your partner die leaving children it is essential you both make Wills covering this possibility and making arrangements in this event should cover all your assets including those held jointly with each other. If your children are under 18 you may wish to restrict any benefit they receive until they attain a higher age (e.g. 21 or 25). If you leave assets in trust for your children to inherit at 18 absolutely there will only potentially be Inheritance Tax on your estate if over the nil rate band (currently £325,000). If you wish to withhold passing capital to your children until they are 21 or 25 then a tax charge of 0.6% per annum will be levied on the value of the trust for each year over 18 the assets are withheld. You have to weigh the cost to your children of this small annual charge against the benefits of withholding the assets until your children mature.
Guardians; Do I Need a Guardian for my Young Children?
You should consider with whom you would want your minor children to live with in the event of both parents dying before all your children are 18yrs. We call these people your Guardians and you can suggest an appointment in your Will. Ultimately the Courts determine who the Guardian of orphans ought to be but your wishes expressed in your Will would be considered. Whilst the Guardian or Guardians should not be out of pocket for rearing your children (monthly payments to the Guardian or Guardians out of trust funds should cover the childrens’ expenses) it is not unusual to leave a gift to the Guardian or Guardians for themselves as a thank you (perhaps 5% or 10% of your estate) in the event they act. The remainder of your funds would then be invested for your children.
Gifts; How Can I Gift in my Will?
A specific gift is a gift of a specific item such as a house or a car.
A pecuniary gift is a gift of cash e.g., £10,000 to my cousin John.
A residual gift is a share of what’s left over after debts, funeral expenses, inheritance tax (if any), administration expenses and pecuniary and specific gifts have been paid e.g., all the rest I leave to my wife etc.,. Residual gifts can be expressed either as percentages (20%) or as fractions (one fifth).
Whilst you make your Will today it has effect only when you die and your circumstances are likely to have changed perhaps substantially by that date. Accordingly you need to be very careful as to how pecuniary and residual gifts interact. For example £10,000 (pecuniary) to each of my five children and the residue to my wife may seem fine whilst you have assets of say £312,000 at the date of making your Will. However if by your death you only have assets of £60,000 your wife would only receive less than £10,000 after debts and expenses and this could be very unfair and cause hardship. Thus you should assume this is your last Will, you may not get around to making another Will or may not be able to do so, and you should have regard in preparing your Will for possible future changes in the value of your assets and your circumstances. Accordingly percentage or fraction gifts may be considered a good way of maintaining proportionality and fairness in your Will as time passes.
You should, of course, also regularly review your Will in the future to make sure it still reflects your wishes.
Funeral; How Will this be Paid?
It is possible to pay for your funeral in advance by purchasing a prepaid funeral plan.
It is important to know the law does not recognise any property in a dead body. You cannot therefore dispose of your body by Will. You can include an express a wish in your Will regarding how and where to be, buried, cremated or whatever. Your instructions are not however legally binding. Your executors are entitled to custody and possession of your body and are under a duty to lawfully dispose of it in a suitable manner.
If you require any further information please contact us to seek advice.
Marriage; What Happens if I get Married after Making my Will?
The act of marriage automatically revokes your Will (save in certain circumstances) and you will be deemed from then on to have no Will. If you marry you should consult Wilson Nesbitt to make a new Will. The act of divorce however does not revoke your Will. If you become separated, divorced or have your marriage annulled or declared void after the date of your Will you should consult Wilson Nesbitt again to update your Will to ensure that those you now want to benefit in these changed circumstances do so under a new Will.
This is lengthy and make require its own landing page that is linked on the Wills landing page. This then could include re farmers and APR, BPR and general information surrounding IHT and possibly gifting.
Gilbert Nesbitt & Lenore Rice
Gilbert and Lenore are senior partners of Wilson Nesbitt, solicitors. Gilbert has been a solicitor since 1978 and a partner in the firm since 1982. Gilbert has been a member of the Society of Trusts and Estate Practitioners since shortly after it’s foundation in the 1990s. Lenore has been a solicitor since 2009, a partner in Wilson Nesbitt since 2012 and a member of the Society of Trusts and Estate Practitioners for the last ten years. They share responsibility for the tax, trust, wills and estate administration department of Wilson Nesbitt assisted by six specialists. Either Gilbert or Lenore are happy to have a phone or video call or meet clients face to face (behind Perspex screens) to discuss Inheritance Tax, complex Will planning or other matters in either our Belfast or Bangor offices.
Take the next step and call us on freephone number 0800 840 9293 or email Wills@Wilson-nesbitt.co.uk to request a free postal Wills & Enduring Powers of Attorney information pack on how you can use our postal service at little cost to make your Wills, make your Enduring Power of Attorney, gift transfer your property or arrange a phone or video call or face to face (behind Perspex screens) consultation with one of our solicitors on making your Will, Inheritance Tax planning, gifting or other tax planning matters.