Common questions about Wills

Is it legal?

What is a Will and what matters can it include?

A Will is a legal document that confirms how you wish your estate (i.e. your property, personal possessions, savings and investments) to be dealt with upon your death. For a Will to be valid the maker of the Will must have testamentary capacity (i.e. be of sound mind) at the time they make their Will and it must be signed by them in the presence of two independent witnesses.

Within the Will it is usual to include the appointment of one or more executors and substitute executor(s) if your first named executor is unable to act. The executor will have the duty of proving your Will, and ensuring that your wishes are carried out and that your estate is distributed in accordance with your wishes. It can also specify any particular wishes you may have regarding burial or cremation and the type of service you would want.

Most importantly it specifies how you wish your estate to be distributed. This can include pecuniary legacies i.e. cash gifts to individuals and / or charities, specific gifts i.e. of personal possessions such as jewellery and confirmation of to who and in what proportions you wish your residuary estate to be distributed i.e. whatever is left after tax, funeral expenses, debts, whether that be to a spouse, civil partner, children, wider family and friends or charitable organisations. If required more complex provisions can be included such as trusts and inheritance tax saving provisions.

Why is it important to have a Will in place?

A Will is the only way to ensure your estate goes to the people and causes you care about (your chosen beneficiaries). Although it may be hard to talk about death it can provide both you and your loved ones with peace of mind and reassurance of knowing that they have a Will in place ensuring that those left do not have to make difficult decisions at an already fraught time.

Your Will can ensure that assets are kept within a family and passed down through generations and can hopefully avoid disputes between relatives, removing doubt as to who you wish to leave your estate to (albeit it is still possible for claims to arise in certain circumstances.) A carefully drafted Will may also reduce an inheritance tax bill payable on your estate after death.

In today’s society the structure of the family is changing, for example it may be you have entered into marriage or a civil partnership for the second time. Whilst you wish to ensure your spouse or civil partner is well provided for there may be children from a previous relationship who you wish to benefit from their estate. In such circumstances provisions can be included within your Will to protect assets by holding them in trust, for example including a life interest trust ensuring that a surviving partner is protected during their life time but that upon their death your share of the property still passes to your chosen beneficiary. 

What happens if you do not have a valid Will in place?

If you do not have a valid Will in place you will die ‘intestate’ and the rules of intestacy will be applied. These specify how your estate will be distributed.

For example your spouse or civil partner will inherit personal possessions and the first £250,000 and an absolute interest in one half of the remainder, your children will be entitled to the other half held on trust for them.

In circumstances where there is no surviving spouse, civil partner or children there is a specific order of relatives who would then become entitled to include parents, brothers and sisters who shared both parents, brothers and sisters who shared one parent, grandparents and then aunts and uncles, with provisions for shares to pass onto children in certain categories if they have predeceased. Ultimately your estate will pass to the Crown if none of the above categories of relative survive.

In light of an estate being distributed under the rules of intestacy your estate could be distributed to relatives you neither know nor like. Furthermore partners who have been living together for many years but who have not entered into marriage or civil partnership are not recognised at all under the rules of intestacy. By having a valid Will in place you get to choose who benefits whether that be relatives, friends or charitable organisations and in what proportions.

The importance of keeping your Will up to date

Many people do make a Will but may not have updated it which may have unintended consequences. You should consider updating your Will if there have been any changes within your family, for example the birth of a new grandchild, the death of an elderly parent or divorce between spouses or children.

You should also consider whether your chosen executors are still suitable, have they predeceased or may be unable to act due to physical of mental frailty. When your Will was prepared originally children may have been minors but have now grown up and may be preferable to be appointed than a relative or friend or a similar age. In circumstances where there has been a breakdown of relationships within the family it may be more appropriate for an independent executor to be appointed (such as a solicitor).

If your executors or beneficiaries have changed address this will not invalidate your Will but it can make it hard to locate them if they may have moved several times.

Finally there may be changes to the law with regard to inheritance tax which mean it may be appropriate to update your Wills to ensure your estate is more tax efficient.

For further information please contact us.

Eastbourne: 01323 727321

Meads: 01323 407577

Hailsham: 01323 841481

Polegate: 01323 487051