Making a Will: What You Need To Know

Two in three people in the UK haven’t made a Will. If you’re one of them, check out this guide to find out why should make a Will, when to make one and how to save on legal fees.

By MyLegalAdviser - Last Updated July 2018

If you want to make sure your loved ones inherit, you'll need to make a Will. With so much at stake and so many providers offering to help, just how do you make a Will and who should you trust to help?

What is a Will?

A Will (or last will and testament as it used to be known) is a legally binding document which allows an individual to specify who should manage their estate and inherit their assets.

Why should you make a Will?

Whilst there are lots of reasons to make a Will, here's a few of the most important ones.

1. Appoint guardians to look after your children

One of the most important reasons to make a Will is to appoint guardians. Guardians will look after any of your children under 18 years old when you die.

Before you appoint guardians, it’s usually best to discuss things with whoever you would like to appoint to make sure they’re happy to act as guardians. You may also want to make provision in your Will to help with the financial burden of the appointment.

If you don’t appoint guardians, and you die whilst any of your children are under 18 years old, then the court will need to appoint a guardian to look after your children. You won’t have any say over who this is, it will be whoever the court considers is in the best interests of your child and who is happy to act.

Will myth busted:

Godparents have no legal right to look after your children after your death. If you don't appoint a guardian, the court will decide who will look after your children and it won't necessarily be their godparents.

2. Choose your heirs

If you don’t make a Will then you don’t get to decide who inherits your assets. You also don't get to decide how and when they inherit (e.g. you may not want your children to inherit everything at 18 years old). Instead everything you own will pass under the Intestacy Rules.

If you make a Will though, you have a great degree of flexibility in how your heirs inherit. IN addition to deciding who inherits from you, you can:

  • leave small gifts of cash/personal belongings to specific people
  • leave gifts to charity
  • make back-up provisions in case any gifts fail
  • create trusts to look after your minor children until they reach a certain age
  • ensure children from a previous relationship will be properly looked after
  • leave assets (e.g. a property) to an unmarried partner

Will myth busted:

There is no such things as a "common law spouse". Unmarried partners don't get the same rights as a married couple on death, including in relation to inheriting property and assets. If unmarried couples want each other to inherit, they need to make a Will!

3. Tax planning

Making a Will allows you to enter into some perfectly legitimate tax planning. The rules and opportunities are too complex to go into here, but the most frequently used opportunities include:

  • Leaving assets to a surviving spouse (i.e. wife or husband) or civil partner – any such gift is (usually) free of inheritance tax.
  • Leaving your property to your children/grandchildren – new rules allow you to leave some of the value of your property to your direct descendants free of inheritance tax.
  • Leaving gifts of business property – subject to certain rules and criteria, gifts of business property are free of inheritance tax.
  • Leaving gifts to charity – if you want to leave gifts to charity, these can help reduce any inheritance tax payable by your estate.

4. Avoid unnecessary delays and costs

Making a Will allows you to appoint executors and to set out in detail who you would like to inherit. Executors are the people who will administer your estate (basically everything you own and owe).

As long as your Will is valid, and subject to the size and complexity of your estate, a Will allows your executors to get on with administering your estate quickly and efficiently following your death. This helps avoid any delays and uncertainty for your heirs after your death.

It also avoids wasted costs in having to go through the intestacy procedure. In fact, failing to make a Will cost estates an average of £9,700.

When should you make a Will?

Whilst there's no hard and fast rule, here's a few of the most important factors which should prompt you to make a Will:

  • Children - any parent with, or expecting, children should consider making a Will to appoint guardians and to make provision to ensure their children will inherit what they want, when they want.
  • Property & valuable assets - if you own items of value (usually a property or expensive assets/investments), you’ll want to make sure they pass to heirs you choose in the most tax efficient way possible. Conversely, if you don’t own much of value, there may not be much point in making a Will (unless you have children).
  • Change in circumstances - certain life changes necessitate making a (new) Will. The most common are:
    • Marriage – because, generally speaking, getting married revokes any Will you’ve made.
    • Divorce – when you get divorced, your Will is read as if your ex-partner has died – so you should ensure your Will matches your wishes.
    • Children from different relationships – you’ll want to make sure your Will is set up to deal with the complexity of the situation, especially if you’ve remarried.

Children inherit

PUT YOURSELF IN THEIR SHOES: make sure your loved ones are provided for, especially if you have young children.

What is required to make a valid Will?

What makes a Will valid varies from country to country.

In order for a Will to be validly made under UK law, it must:

  • be in writing
  • be made by an adult over 18 years old
  • be made voluntarily and without any undue pressure or influence
  • be made by a person who is of sounds mind
  • signed and dated by the person making it
  • witnesses by two independent witnesses over 18 years old who also sign and leave their details

If all of these things aren't right, it could mean your Will isn't valid. Getting these points wrong is one of the most common problems when using a DIY Will service.

Intestacy Rules - what happens if you die without making a Will?

If you die without making a Will (known as dying intestate) your estate will be administered according to the intestacy rules.

The intestacy rules were not made to ensure that assets are shared out as the deceased would have wanted. Instead, they follow prescribed rules to determine who should inherit, which will generally be as follows:

  • married/civil partnership & children - partner inherits: all the deceased's belongings, the first £250,000 of the estate and half of the remaining estate above £250,000. Children inherit the other half of the estate above £250,000 (in equal shares).
  • married/civil partnership & no children - partner inherits everything.
  • unmarried or not in a civil partnership - estate is shared equally amongst the first of deceased's: children/grandchildren, parents, siblings (through all categories of your relations and eventually to the Queen).

What about a DIY Will or a cheap will writing service?

There are plenty of Will writing services around now. Whilst many of these may be suitable for the simplest of estates, if there is any complexity to your estate or your wishes are quite specific, you are often much better off using a solicitor who specialises in private client law.

This is because many Will writing services will use a one-size-fits-all precedent regardless of the circumstances. Will writing services generally don’t take into account your assets and your family circumstances, they therefore don’t give you the best Will based on the whole picture. There's also a much higher danger of getting a DIY Will wrong, which could mean the whole Will is null and void.

A specialist private client solicitor has the years of training and expertise under their belt to consider your assets and wishes together and to advise you on the best way to look after your loved ones following your death.

Make a Will

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