Wills

Making a Will is all about making positive choices, both about your estate and who is to receive it, and other things such as who will look after the estate and its administration, and if you leave children under the age of 18, who will look after them.    

Without a Will, the law will decide who gets your estate and when.  For example if you leave behind a spouse and children then it is not automatically the case that the spouse will inherit everything – in these circumstances, of the solely owned assets only the first £125,000, the personal effects and a life interest in half the balance.  The rest goes to the children at 18. 

If you leave a spouse and other relatives, such as parents or brothers/sisters, but no children of your own, in this case the spouse gets the first £200,000 and half the balance.  The other half goes to the other relatives. 

 You can only make a Will if you have testamentary capacity.  The test for this is set out in the old case of Banks v Goodfellow from 1870.  The definition still holds good today and broadly requires that the testator understands the effect of making a Will, appreciates what he has (the extent of his estate) and who may have a moral claim upon it (the family).   

 Things you should be putting in a Will are: 

• Funeral wishes 

• Positive choice about who is to deal with the administration of the estate - estates can be complicated, and this is not necessarily defined by the values involved.  Stocks and shares, assets abroad, extended families, all complicate an estate to the point where family members may feel out of their depth or indeed be rightly put off from acting as executor.  In these circumstances having a professional executor, who is regulated and has good indemnity insurance is to be recommended.  Remember all of this comes at a time when the loved ones who are left are not functioning to their previous capacities - having someone divorced from the grief associated with the loss of a loved one can be very helpful. 

• Positive choice about who will look after any children you have who are under the age of 18.  In the absence of any statement then the courts will decide who should look after children under the age of 18 and generally it will be the grandparents.  They have done their time, they have different views on how children should be brought up and there is the practical question of can they physically cope with the job.  Choose someone younger. 

• The primary job of the Will is to determine who will inherit your estate and how. 
  • Consider legacies to friends and charities 
  • Spouses and unmarried partners 
  • Children, and at what age 

• Trusts can be used in Wills both to save tax and also to preserve assets for future generations. 

• If you have married since the date of your Will, then it is no longer valid. If you become separated or divorced after the date of your Will, the Will is still valid and will need updating.
• Making a Will does not have to be expensive and is a very positive tangible statement for those that are left behind.