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What is a will?
A will is a legal document which sets out your wishes regarding the distribution of your property, what type of funeral you would like and for care of any minor children. To ensure that your wishes are carried out, the most familiar type of will created is known as testamentary will. A testamentary will is where you prepare the document and sign it in the presence of witnesses.
In 2016, research showed that approximately 59% of UK adults have not written a will. Furthermore, approximately 1 in 5 people think they are not wealthy enough to leave a will. A will is not confined to the richest nor does it exclude the poorest. Some of the reasons why people have not created a will is because they think that their belongings will automatically go to the right person e.g. partner, children or parents. Statistics showed that approximately 16% believed that they do not have enough possessions that would be left to be worth passing on when they die. An estimated 23% of the people put of creating a will until they are older.
However, without a legal binding document in place, it is not guaranteed where or how your possessions will be distributed, which may ultimately go against your wishes.
Below are some of the reasons as to why you should make a will:
Make a will to name your children’s guardian
When writing a will, you have a say as to who should look after your dependants, if the child is under 18, you can appoint their legal guardians.
If this is not mentioned in the will, it will be left to the family courts to appoint a legal guardian, and this may be a person you would not have wanted to appoint. Even though, you may have verbally appointed a family member or the child’s godparent, this does not make it legally-binding.
Ensure your family are provided for financially
When distributing your wealth, you have the right to make plans to provide for their future financially. For example, this can include setting money aside for their education once they reach a certain age. You can also ensure that your loved one receives a set amount of money each year or a lump sum to buy a home.
You can also create a trust to provide for your children, this will allow you to control when the child receives the money and how it is used.
Protecting your partner
Did you know that an unmarried partner is not entitled to anything from your estate unless this is specified in your will?
Writing a will, will enable your partner to receive a share from your estate.
Protect your property
If the family home is in your name, your partner may not be automatically in line to inherit the property, thus resulting in them losing their home.
Creating a will to include your property will mean that you can either include a share of your property in the will or give an individual the right to reside in the property.
Look after your pet
Who will look after your dog or cat once you have passed away? who will continue to take the dog on a daily walk? In your will, you can include who is to look after your pets. You can also leave some money aside to feed them and to look after them.
When writing your will, be clear about who gets your assets. You can decide who gets what and how much. There may be an estranged relative who may try and claim their right over your assets, if so, in your will you have the right to exclude any estranged family member.
How to create a will?
A will can be made on any sheet of paper and follow any format, provided it is signed by you and witnessed as required by the law. Often, people will either create their will themselves, or instruct a lawyer or a professional will writer to create one.
If you make a will, you will need to have it formally witnessed and signed to make it legally valid. For your will to be legally valid, you must:
- Be 18 or over
- Make it voluntarily
- Make it in writing
- Be of sound mind
- Sign it in the presence of two witnesses who are both over the age of 18 and;
- Have it signed by your witnesses in your attendance.
NB: You cannot leave your witnesses (or their married partners) anything in your will.
Can I amend my will?
You cannot amend your will after it has been signed and witnessed. The only way you can change your will is by a codicil (an official alternation). You must sign the codicil and have it witnessed in the same way as witnessing a will.
When is legal advice required?
You may seek legal advice if:
- You share a property with someone who is not your spouse or civil partner
- You want to leave money or property to a dependant who cannot care for themselves
- Your permanent home is outside the UK.
- You have several family members who may make a claim on your will i.e second spouse
- You have a business
- You have a property overseas
Where can I store my will?
It is important that your will stored in a safe and accessible place where your executors can find it, when needed. If your will was damaged or your executors are unable to locate it after your death, this may result in your wishes not being followed and the contents of your will may not be carried out.
A majority of the people store their will at home in a safe location. One of the main reasons why people store it at home is simple, it is free. However, a disadvantage is that this can be easily damaged, even by accident which will invalidate the will.
If you are to store your will at home, ensure that there are no other documents attached to the will. If there are any marks made by paperclips, glue or tape, this may raise questions about whether the will has been tampered or amended with.
Solicitor or bank
Your solicitor or bank may offer to store your will for free or at a low cost. This is for commercial reasons, as they are the keeper of your will, your executor must come to them when you pass away. At this point, they may persuade your executors to let them handle the work of administrating your estate (probate)
Your executors are not obliged to accept this offer; they can carry out the probate themselves.
Will storage companies
Will storage companies will offer the same service as your solicitor, but at a lower cost. Please do check fees and charges for each company as these will vary.
What is probate?
When someone dies and leaves property, which includes money and possessions ( their estate), you will need to sort out who gets what and how much.
In order to do this, you will apply for a grant of probate also known as a grant of representation. This will prove your authority to administer the estate.
In England, Wales and Northern Ireland, if there is a will you will apply for a grant of probate or grant of representation. In Scotland, this is known as confirmation.
There are two slightly different processes involved depending on whether or not the deceased left a Will:
- A Grant of Probate is required if there is a valid Will which appoints one or more executors. These executors apply to the Probate Registry for the Grant.
- A Grant of Letters of Administration is required where the person died ‘intestate’ which means they did not have a valid Will. Where the person died intestate then a close family member will usually apply to the Probate Registry to become an administrator of the estate.
The role of an executor and the process of dealing with probate includes:
- Gathering all assets
- Paying any bills
- Distributing what is left in accordance with the will.
The process of probate can usually take up to 4-8 weeks after submitting the application, provided that there are no complications.
Not everyone needs to use probate. Many estates do not go through the process, for example if there is a jointly-owned property and money which passes to a spouse or civil partner, probate will not be used.
Law of Intestacy
if you die without a Will, then the Government will decide who will inherit your estate in accordance with the Laws of Intestacy. These were drawn up in the 1920’s, and are now somewhat out of date. However, these laws state that your spouse may end up sharing your estate with your children or parents. Or if you are an unmarried couple, then your partner may not get anything.
If you do not make provision for young children, then the authorities will decide who is best placed to look after them, which may be hugely upsetting and disruptive. It can also mean that your partner (if you are not married) does not automatically become guardian of young children, even though they may be the parent.
This article is intended for guidance only and must not be relied upon for specific advice.