Making a Will – Frequently asked Questions…
Tollers Trust and Estates team answer your most frequently asked questions in relation to Making a Will …
What is a Will and why do I need one?
A Will is a legal document that allows you to specify who should benefit from your assets eg your property, money and possessions, after you’ve died. It’s very important that the wording used in your Will is clear and legally effective.
If you die without a Will in England or Wales you will die ‘intestate’ and the law will decide who gets what (which may not be who you would wish to benefit). If you have no living family members, all your possessions and property will go to the Crown.
If you die Intestate and are not married to or in a civil partnership with your partner at the date you die, your partner will not be entitled to receive any part of your estate under the Intestacy Rules.
What are Executors of a Will?
Executors are the people you name in your Will to carry out the wishes in your Will after you die. They will be responsible for all aspects of sorting your affairs after you’ve passed away such as notifying people that you have died, helping to arrange your funeral, dealing with any outstanding bills, paying debt and any Inheritance Tax, collating information about your assets and liabilities and then distributing your estate to your chosen beneficiaries.
Does my Executor need to be involved with the Will writing process?
No, your Will is your own private document. Some people choose to tell their Executors that they have been appointed & might also inform them of practical information such as who they bank with and funeral wishes. Others choose to detail this information in a letter stored with their Will.
Who can be an executor of a Will and can they also be a beneficiary?
Family members, friends or anyone else benefiting from your Will can be an Executor, as long as they are over 18 years old.
As an alternative, you can appoint a firm of solicitors such as Tollers to be your executors. This means you can rest assured that your estate will be correctly administered when you pass away. Tollers offer a Professional Executor Service, which is a popular option with people who don’t want their loved ones to have to deal with all the legal and financial responsibilities of dealing with their Estate after they have gone.
How does getting married or entering into a civil partnership affect your will?
Marriage/civil partnership will revoke (cancel) your existing Will unless you have included a contemplation of marriage clause. Therefore, as part of your marriage/civil partnership preparations you must make a new Will to control who is to inherit from your estate on your death.
What does it mean to make a will ‘in contemplation of marriage’?
This is an exception to the rule that your Will is automatically revoked on marriage/civil partnership. Including a contemplation of marriage clause will ensure your Will is both valid before and after your marriage to a particular person.
What If I have young children?
When creating a Will, one of the first things to consider is the guardianship of your children. If you currently have Parental Responsibility over your children and they are under 18 years old, then you can include in your Will the appointment of a Guardian to look after your children if you were to pass away whilst they are under 18 years old. This takes effect only if there is no one else with parental responsibility over your children when you pass away. The importance of appointing a Guardian is one of the main reasons why parents make sure they have a valid Will in place.
You can also include your children as beneficiaries in your Will even though they are very young. When this occurs it is sensible to consider the age you would like your children to reach before being able to access their inheritance, typical ages are 18, 21 or 25. Whilst the child is under that age their inheritance is managed on their behalf by people called Trustees. These are people that can also be appointed in your will.
I have a disabled child who will need looking after once I die and I do not want them to receive a large capital sum, can you help me?
There are different ways of leaving money to a person with a disability. We can advise you about the different options available.
Can I use my Will to protect against care fees?
It’s possible. You may be able to protect your Estate by using a Trust in your Will. It is a specialised area and is vital you get professional Will Writing advice to ensure it is appropriate for your circumstances.
How often should I review my will?
We recommend that our clients do a full review of their Will every 5 years or after a life-changing event such as the death of family member or a relationship breakdown.
Making a will if you have an illness or dementia.
If you are unable to sign your will, it can also be signed on your behalf, as long as you are present and it is signed at your direction. However, you must have the mental capacity to make the Will, otherwise, the Will is invalid. Any Will signed on your behalf must contain a clause saying you understood the contents of the will before it was signed.
Having dementia, a brain injury or mental illness, does not automatically stop you from being able to make a Will. It will depend on whether you satisfy the legal test for having the necessary mental capacity to do so. During our meeting we would evaluate your mental capacity and, if necessary, we may recommend and assist you in obtaining a mental capacity report prepared by an independent third party.
Where should I keep my Will?
We store the original Will that you write with us completely free of charge. Tollers also register your will with Certainty, the National Will Register, the Law Society’s endorsed provider free of charge too.
If you have a question regarding Making a Will or would like more information regarding making or changing a Will…Talk to Tollers on 01604 258558, our experienced Trusts and Estates teams are on hand to provide you with the answers and guide you through the process.
