Considerations for making a Will

Mother and son blowing bubbles

Before you visit a solicitor to make your Will, it can be helpful to have a good idea in your mind of what you would like to include.

There are also various bits of information that your solicitor will ask on the day (or possibly, before the day). In this guide, I go through the most common considerations/questions and why they are needed.

Identification

These pieces of information are included to identify you as the ‘testator’ (the person making the Will).

Names

You will need to give your full name, and any other names that you are known by. So, for example, if your legal name is Anthony but everyone has been calling you Tony for your entire life, your solicitor will include both in your Will, to avoid any confusion.

Main address

  • This is your main address which you would consider to be your home – usually where you would send your correspondence.
  • If you change address, the Will is still valid (although it is a good idea with events such as moving house to regularly review whether your Will needs to be updated)

Domicile/choice of law

If you are resident in another country for part of the year, you must let your solicitor know. They need to establish where you are considered to be domiciled for tax purposes. Your solicitor can also include a choice of law clause if appropriate (this can be useful when dealing with assets in another country).

Date of birth

This is included again just for identification.

Marriage or civil partnership

  • If you are currently married or in a civil partnership, your solicitor will usually want to see both of you together. It is really important that couples have a mutual understanding and acceptance of each other’s objectives, to avoid conflict down the line.
  • If you are currently married or in a civil partnership but separated, your solicitor will advise you of the risks of your former partner making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 should you pass away.
  • If you have previously been married and you are now divorced (or you were previously in a civil partnership and this has now been dissolved) you should discuss this with your solicitor. If your former spouse or civil partner is still alive and has not remarried or entered into a new civil partnership, your solicitor will want to know whether a Clean Break Order was made at the time of the divorce or dissolution. If it was not, they will again advise you of the risks under the Inheritance Act.
  • If you have previously been married and you are now widowed, it is important to mention this to your solicitor. You may have the use of an additional tax allowance.
  • If you are single but expecting to get married or enter into a civil partnership, you must let your solicitor know. Marriage immediately cancels a Will (perhaps surprisingly, divorce does not – although it does have an effect!). However, if the marriage or civil partnership is planned for a date in the foreseeable future, your solicitor can include a clause to ensure the Will is still valid afterwards. You will need to provide the full name of the person you expect to marry or enter into a civil partnership with.

Other children

Let your solicitor know if there are children in the family who are step children or have been treated as part of the family but not legally adopted (including now-adult children). Your solicitor can then ensure any gifts made to your ‘children’ either include/exclude these persons, per your wishes.

Previous Wills

  • Your solicitor will want to know if you have previously made any Wills. If you have, you should provide them with a copy. It is very helpful for your solicitor to have these before the meeting.
  • You can make multiple Wills to deal with different assets. An example of this would be if you have a property in another country (and one reason to consider making a separate Will for this is where the inheritance laws in that country are different to England and Wales). Another example would be if you wanted to deal with business and non-business assets separately. If you do make multiple Wills, your solicitor must carefully draft the new Will to ensure it does not cancel the others.
  • If you only want to make small changes to your old Will, a ‘codicil’ might be more appropriate. This is just a document that sets out your additional wishes, which is executed like a Will. An example would be, if you have acquired an asset that is not exceptionally valuable (such as a painting or jewellery) and would like to gift it to a grandchild. If the asset was very valuable, it would always be better to include it in a fresh Will as this is less likely to be challenged in the future.
  • Another thing your solicitor will consider is whether your wishes now differ drastically from those in the old Will. An example might be if you previously shared your assets equally between your children but you have now decided to reduce a gift to a child, or exclude them altogether. Your solicitor will discuss any large changes in your wishes and advise on the risks.

Funeral wishes

These can be included in your Will but unlike any other part of the Will, they are not binding.

You could choose, for example:

  • Burial
  • Cremation
  • Natural burial / Woodland burial
  • Scientific research

Executors

  • You will need to choose Executors to manage your affairs when you die. Although you can have up to four, it is typical to choose two. However, keep in mind the age and health of those you appoint, and consider having a replacement Executor if one of your choices is elderly or in poor health.
  • It is typical to appoint friends and family for this role. Try not to make your choice based on the feelings of the Executors (including someone so they don’t feel left out). Instead, consider carefully the skills of the people that you are appointing and whether they will be a good Executor. Consider also whether they will work well with the other Executors.
  • If you decide to appoint professionals, your solicitor will include a ‘charging clause’ so that they can get paid.

Guardians

If you have children under the age of 18 years, you should appoint guardians. If you don’t appoint guardians for your children and both parents die, the Court has to appoint a guardian. This may of course not be who you would choose.

The appointment only takes effect if both parents die. For example,

Alex and Sara are married with two children. They divorce and the children live with Sara. Alex makes a Will appointing his sister Jane as guardian of the two children. Alex dies.

The appointment of Jane will only take effect if Sara also dies before the children reach 18 years of age.

If you are not with your child’s other parent, it is advisable to discuss your choices with them, although this is not essential. The reason is that problems can arise if you both appoint different guardians and then both die.

Alex and Sara are married with two children. They divorce and the children live with Sara. Alex makes a Will appointing his sister Jane as guardian of the two children. Sara makes a Will appointing her sister Suzanne as guardian of the two children.

Alex dies, and then later Sara dies. Jane and Suzanne are now the children’s guardians. Jane lives in Cornwall. Suzanne lives in Edinburgh.

Since the two guardians must agree on all matters relating to the children’s education and upbringing, making decisions for the children will be difficult. Should they disagree, the matter will have to be referred to the Court. It is a lot simpler if parents discuss the issue and try to coordinate who they appoint – even if they are no longer together.

Existing guardians

If you are already acting as a guardian for someone else’s child, you can appoint a successor in your Will.

Your assets

In this section I look at some of the considerations for what will happen to everything that you own – your assets. For each gift you make, consider what should happen to the gift if that person does not outlive you.

Assets that don’t pass according to your Will

Some assets won’t pass according to your Will, even if you mention them specifically. These include:

  • Property (houses, buildings) that is held as ‘joint tenants’ (rather than ‘tenants in common’)
  • Most types of pension, where you can nominate who the money goes to but the pension trustees have discretion to pay out to whomever they choose
  • Most types of life insurance, where you can nominate who the money goes to but the life insurance trustees have discretion to pay out to whomever they choose

Make a list of these so that your solicitor can check through them and see how they will pass.

Everything else

  • Make a list of your assets with their approximate value. You do not need to list small items of insignificant value.
  • If you are already the beneficiary of any trusts or ‘remainder interests’, make a list of these.
  • Make a list of any business assets or agricultural property.
  • Make a list of any digital assets you own including NFTs, crytocurrency, stock photographs you hold copyright to etc.

Personal possessions

  • You need to think about who you want to gift your personal possessions to. Often people gift a few items of actual or sentimental value specifically in their Will, leaving everything else to one person (e.g. their partner or a child).
  • If you gift everything to multiple children, consider how they might choose items without a disagreement. It is usually advisable to include some mechanism in your Will (such as, oldest chooses first, then next oldest, until all the items are gone). This is especially important for items of value.
  • For gifts such as these, consider who should pay the costs of packing, shipping and insurance of the items? This can come from your estate or you can require the person receiving the gift to pay.

Land and buildings

  • You can gift properties that you own either outright or that you own a share of as a ‘tenant in common’. Your solicitor will check this for you.
  • Make sure you have the full address for each property you intend to gift in your Will.
  • Let your solicitor know if there is a mortgage on each property and if so, the approximate amount outstanding/when it is likely to be paid. This can help with Inheritance Tax calculations.
  • Let your solicitor know if any property has some business or agricultural use (there may be tax reliefs).
  • For couples with a jointly owned home, you may wish to consider leaving each other a ‘life interest’ in your share of the property. This gives them the right to live in the home for life (and even replace it with another property if they want to), but secures your share for the children, no matter what happens after your death. Your solicitor will discuss with you whether this would be the best solution for your circumstances.
  • The introduction of the ‘Residence Nil Rate Band’ means that your choice of who to give property to can affect your tax position. This should be discussed with your solicitor.

Pets

Pets are very often forgotten about when making a Will! They are actually considered to be property, in the same way that a car or vase is property. You can gift them to a person, but consider that pets can be rather expensive to keep! You may want to make a monetary gift to that person (provided that they accept the gift of the pet), and have some sort of fallback if they refuse.

Cash gifts

You can make specific cash gifts in your Will to people that you choose. Consider that the value of the gift may fall over time (because of inflation). You should aim to review your Will every 3 years (or following any major life events such as death of a major beneficiary, substantial increase or decrease of your assets etc).

Gifts to charity

  • Consider any charities that you would like to gift to, and what should happen if the charity no longer exists at the time of your death.
  • If Inheritance Tax is due on your estate and you gift 10% or more of your net estate to charity, there may be a reduction in the amount of tax payable.

Trusts

  • Children cannot receive gifts themselves directly and a trustee will need to hold the gift for them. Your Executors can be trustees, or you can appoint separate trustees in each case.
  • Even when the child reaches 18, you may feel like a trust is still necessary. After all, this is a very young age to receive substantial assets. Your solicitor can discuss with you the various options to ensure the child does not inherit too soon and the inheritance is protected until they are an appropriate age.
  • There are various different trusts available for parents and grandparents. Each have different consequences, particularly from a tax perspective. Your solicitor will help you choose the most appropriate trust for your circumstances.

Discretionary trusts

In some circumstances, you might decide that a beneficiary should not be absolutely entitled to the money you want to gift.

  • Perhaps they have been made bankrupt recently, or they are really quite terrible with money.
  • Perhaps they are going through a divorce, or suffering from a serious mental health condition.
  • Alternatively perhaps they claim benefits and the gift would immediately impact their payments.

In these circumstances, sometimes it is better to put their gift into a trust and appoint someone to manage it for them. With a discretionary trust, the trustee does not have to pay any money out – although they must always act in the beneficiary’s best interests. Because there is no obligation for the money to be paid, it cannot be taken by creditors and does not impact benefit payments. It will typically be ignored in divorce proceedings (although the Court has full discretion to consider it under s25 of the Matrimonial Causes Act, and may well do so if it is a substantial sum).

Other business or agricultural property

You may wish to make a separate Will to deal with business and agricultural property, but you don’t have to. Consider carefully who is best placed to receive business or agricultural property and how it will be managed after your death.

Business or agricultural property relief may be available – your solicitor will be able to advise.

Residuary estate

You will need to make a gift of everything that is left over, after all the specific gifts have been paid out. This is called the residuary estate. Consider what might happen if your choice of beneficiary dies before you. If you have other beneficiaries, should they inherit the share – or should the deceased person’s own children inherit (if they have any)?

Debts

If anyone owes you money, let your solicitor know. You also have the option to release them from the debt on your death.

Similarly, if you owe anyone money, let your solicitor know (other than standard debts such as credit cards, which will be paid from your assets first).

Lifetime gifts

If you have made any lifetime gifts, you need to let your solicitor know, so that they can calculate any potential Inheritance Tax liability. You also need to consider what should happen if you die within 7 years of making a gift, where Inheritance Tax is due.

Exclusions

It is very important that you make your solicitor aware of:

  • Anyone you have been supporting financially (or will be supporting financially)
  • Anyone you intend to exclude from your Will who might otherwise expect to inherit

Your solicitor will advise on the risks and consequences of these.

Download a questionnaire

If you would like to download a free simple sheet in Microsoft Word format to help you prepare the above information for your solicitor, click here.

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