Top Ten questions on making a Will

by David Morrison

Why make a Will?

You should make a Will because it puts you in control and it makes it easier for your family, when you die, as it should set out clearly what you want to happen. The process of making a Will allows you to put your affairs in order and identifies potential problems while there is still time to put them right.

What do I need to know in order to make a Will?

You need to know what assets and property you own and whom you would like to receive it when you pass away. You also need to know whom you would like to be responsible for dealing with your estate and making sure your intentions are carried out. These people are called executors. If you have children you should also think who will be their guardians if you and your partner die before they reach adulthood.

Do I need to worry about tax?

Most estates are under the threshold of £325,000 for inheritance tax (this is called the nil rate band). Any amount exceeding this sum is taxable at 40%. However any gift left to a partner to whom you are married or in a civil partnership with is exempt from inheritance tax. In some cases the threshold for inheritance tax can be as high as £650,000 as the nil rate band is transferable from one spouse to another in the event that on the death of the first spouse none of the tax free element was used. There are other exemptions and reliefs which can reduce the impact of inheritance tax.

Whom should I appoint as executors?

You could appoint a member or members of the family or friends, but there is a risk of conflicts of interest or arguments arising. An alternative is to appoint a professional such as a solicitor or accountant and although there will be charges involved, solicitors bring a degree of knowledge and independence which can be helpful. The key qualities are independence, honesty and a certain degree of tenacity and commitment, and bear in mind the age and health of the proposed executor as it will complicate matters if an executor dies half way through administering your estate.

What happens if I die without making a Will?

Your estate will be dealt with in accordance with the intestacy rules which were set out originally in the Administration of Estates Act 1925. These are quite formulaic but in essence your estate will be split between your spouse and your children, and if you do not have a surviving spouse or children it sets out a line of entitlement. Your parents will rank ahead of your siblings.

Can I leave my assets to whoever I would like?

Yes, in England we have freedom to dispose of assets as we feel fit. The only limitation on this is that certain relatives may have a claim for reasonable provision to be made for them, under the Inheritance (Provision for Family and Dependents) Act 1975. The categories of relative who may have a claim include spouses, civil partners, cohabitees living with the deceased at the time of death, children and any person who was “maintained wholly or partly” by the deceased at the time of his or her death.

Who can make a Will under English law?

A Will may be made by anyone who is “domiciled” in England and Wales. A person is domiciled in England and Wales if you were born in England or Wales and it is where their family is from or, alternatively if it is the place that you intend to make your permanent home for the rest of your life.

Whatshould I do if I own foreign property?

If you own property in a foreign jurisdiction then you may need to take advice in that jurisdiction to establish if there are local laws of succession. “Immovable property” such as land is usually dealt with in accordance with the law of the land in which the property is situate. “Movable property” such as cash in bank accounts is generally dealt with in accordance with the law where you are domiciled.

What happens to my Will when I die?

The persons named as executors need to locate your last Will and then they take the Will to a solicitor or commissioner for oaths, make an oath to administer the Will in accordance with its terms and English law, they have to file forms with the Inland Revenue regarding the size of your estate and pay a small fee with the Probate Registry. Provided there are no complications, they will be given a grant of probate which is the document vesting them with the power to deal with your assets.

How much does a Will cost?

It depends on how complicated your Will is. For a simple Will, the average cost is about £300 plus Vat (£360) but charges would be higher if there is tax planning or the creation of trusts to consider too. The cost includes a meeting to discuss the Will, the preparation of a draft Will for approval and comment and a further meeting to oversee the correct execution of the Will.

Please contact David Morrison for further assistance with wills and will drafting.