It's all too easy to put off making a Will, or to believe one isn't necessary for you. Anyone who wants a say in what happens to their belongings after their death should have a Will. Wills are not necessarily expensive and they can be very flexible to reflect your wishes. Below are the answers to some of the questions we all have regarding Wills.
First of all, do I have to make a Will? No.
Should I make a Will? Definitely YES.
It is a mistake to think that you do not need to make a Will if you wish to leave everything to your surviving wife or husband (a "spouse") or civil partner. In fact, if you die without a Will the Intestacy Rules will apply and the surviving spouse or civil partner will only receive the first £125,000.00 of your Estate and personal chattels and a life interest in the remaining half of your Estate. The other half of your Estate would pass to the children.
Unless you make a Will you have no control over what happens to your Estate.
Often it is thought that you do not need to make a Will if everything you own is in joint names so that, on your death, everything will pass to the survivor. It is true that property held in joint names will pass automatically to the surviving joint owner but some property may be held as tenants in common. If this is the case that property does not pass automatically to the joint owner but would pass as stated in your Will or on the Intestacy Rules. On intestacy, your surviving wife, husband or partner would not automatically receive your share of the house. Even if you have no children the limit is only increased to £200,000 and half the balance over with chattels and the remainder goes instead to your parents or your siblings if there are no parents.
In extreme cases where there is no surviving spouse or partner and no relatives of the appropriate classes to inherit the Crown (or Duchy of Lancaster or Duke of Cornwall) would inherit.
When should I make a Will?
Any time is a good time to make a Will but some occasions mean that it is absolutely essential to make a Will. Getting married or entering into a civil partnership will cancel any previous Will made so a new Will is essential. It's also easy, a new Will can be made in advance, 'in contemplation' of the event. The purchase of your first (or new) home, the birth of a child, going on a long journey, the death of a wife, husband or partner or other change in your circumstances are all occasions when you should consider making a Will or reviewing your existing Will.
Who will act in administering my Estate?
The Executors you name will ensure that your wishes are carried out. You can name up to four Executors in your Will but only two will generally act. We generally recommend that the surviving wife, husband or civil partner is always appointed and that a professional such as a Solicitor or an Accountant should also be one of the Executors. Invariably our clients take advantage of our Executorship service.
Who will look after my young children?
You will need to nominate guardians in your Will to look after your children. Guardians will only be appointed if any child is under the age of 18 at the time of your death and if both you and your husband, wife or partner have died.
Who can benefit from my Estate?
Anyone that you wish to benefit, whether immediate or more distant family, a friend, a charity or other organisation that you support, can be a beneficiary under your Will. The Estate can be divided into as many portions as you wish and any specific gifts such as sums of money or jewellery or other items of particular sentimental value can be left to any named individuals.
Do I need to consider Inheritance Tax Planning?
The nil rate band for Inheritance Tax for 2008/2009 is £312,000.00 so, when taking into account the value of your home it is sensible for everyone to consider Inheritance Tax planning. Anything over and above this amount is liable to tax at the rate of 40% on death. For most clients the impact of tax can be lessened by sensible planning and by use of the available allowances. In addition some tax saving schemes are available but could only be considered according to the circumstances of the individual client.
But is there really any need for a Will as I won't lose my Inheritance Tax allowance now, will I?
Since October 2007, any part of the nil rate band entitlement that one spouse/civil partner did not use on their death can be used by the surviving spouse/civil partner on their death. However, the making of a Will is not purely about tax. By making a Will you make your passing easier for those you leave behind; you give certainty as to your wishes and you control what is to happen to your estate. You can ring fence assets e.g. to protect a vulnerable child or older person, you can make arrangements and give directions secure in the knowledge that your wishes are clear and certain, not left to chance.
Can I change my Will once it has been executed?
Yes, you can sign a 'Codicil' to make simple changes or you can make a completely new Will. Circumstances can change and you may need to make changes every once in a while. Whether the changes are major or minor, this should be done through a Solicitor. Alterations and new Wills can only be made so long as you have mental capacity to do so. There could be a challenge to your Will if, for example, your mental capacity was in question when you made the Will or any Codicil or if someone felt that you were pressured in someway into making the Will or Codicil. A Will can only be altered after your death if all your named beneficiaries agree.
How can I protect against mental incapacity?
You cannot - but you can make arrangements to cover the situation. First of all making a Will ensures that your wishes for your estate after your death are confirmed. Secondly, if you don't have an old style Enduring Power of Attorney, consider a Lasting Power of Attorney.
How much does it cost?
We charge for Wills by reference to the amount of time spent on your Will. The charging rate varies according to the experience of the person concerned. Wills can range from being very simple to very complex as can a clients wishes and instructions, most often they fall somewhere in between.
A simple Will on straight forward instructions can cost no more than £200 plus VAT. At Gardner Austin LLP we make the effort to understand your circumstances and we consider it important that your Wills correctly reflect both your wishes and circumstances. Before preparation of every Will we will either see you in person and/or provide you with more detailed information and a special questionnaire (the contents of which of course remain confidential) to help you in giving us clear and informed instructions. We are accordingly able to confirm the level of fee that will apply to your Will at an early stage for you.
When you and we have decided upon the details of your instructions, we prepare a draft Will which we send you with a written report, explaining the terms and effect of the draft. Then if you are happy, the final Will is prepared for your execution. We always like to meet clients to execute their Wills. Usually only one meeting is necessary before a Will is finalised for signature but it can be more depending on your circumstances and instructions.
Contact Tania Austin.