Wills & Probate
Making a Will
Why should you make a Will?
If you die without making a Will, i.e. "intestate",
your estate will be divided strictly in accordance with rules laid
down by Act of Parliament. This can lead to enormous unfairness
and heart ache. It is important to remember that a husband or wife
is not automatically entitled to receive the whole of his or her
spouse’s estate. If the deceased has surviving children
the spouse will only receive a proportion of the deceased’s
estate which could cause serious financial problems and disputes
within the family. Matters are even more complicated where husband,
wife or both have children by previous relationships. Also remember
that couples living together who are not married have only limited
rights of inheritance in respect of their partner’s estate.
Leaving aside who gets what under the intestacy
rules, dying without making a Will or taking a Solicitor’s
advice about minimising or avoiding Inheritance Tax can prove very
costly for your family or other beneficiaries. You may think you
are not wealthy enough to pay Inheritance Tax. However, when you
start to think and add up the value of your home, car, shares, life
policies and other investments the total is probably more than you
realise. Whilst there are a number of exemptions and reliefs available
for gifts made during your lifetime and on death in favour of a
spouse, the lifetime exemption for Inheritance Tax purposes is still
only £263,000 (@ March 2004). Anything you leave in excess of
that figure(including what you have given away in the seven years
before you die), other than to your husband or wife, will be taxed
at the rate of 40%! Even fairly basic tax planning advice can drastically
reduce the amount of tax payable and in some cases remove the tax
liability altogether. It is for this reason that Inheritance Tax
is often called a "voluntary tax" i.e. only payable by those who
were foolish enough not to take advice.
The last consequence of failing to make a Will
is that the winding up of your estate will take longer and may cost
a great deal more in professional fees than if you had left your
affairs in an orderly fashion. This will reduce the amount of money
available to your beneficiaries and may cause hardship as a result
of the delay in winding up your estate.
Do
I need a Solicitor to make my Will?
No, you can make your own Will or have a non-qualified person make
it for you. You should however be aware of the potential pitfalls.
A large percentage of non-professionally drafted Wills are either
invalid or partially defective. It is unlikely that anyone other
than a fully qualified solicitor will have sufficient training and
experience not only to draw the Will up properly but, more importantly,
advise on matters relating to inheritance law, taxation, property
matters, likelihood or otherwise that the Will may be challenged
by other claimants or, other family problems. Also, many words and
terms have specific meanings in law which are different from their
every day use. Home made and non-professionally prepared Wills do
not always mean what the writers think they do. Lastly, it is important
to ensure that the Will is correctly witnessed.
Always remember that a qualified solicitor is required
by law to put the interest of his or her client first, has spent
years studying all aspects of law which may affect your Will and
carries a very high level of professional indemnity insurance cover.
What do Executors Do?
You can chose to have between one and four executors. It is their
responsibility to ensure that the terms of your Will are carried
out, that your estate is correctly administered and that any trusts
created by your Will are managed effectively. An executor may be
anyone of sound mind over the age of 18. It is sensible to ask people
beforehand if they would be prepared to act as your executors.
Do I need to appoint Guardians
for my children?
If you and your spouse/partner die whilst your children
are under the age of 18, they will not only be too young to inherit
your estate but will need to be cared for on a day to day basis.
In those circumstances you will naturally want your children to
be brought up and looked after by people you have chosen and who
are trustworthy and will love and care for them. This can only be
guaranteed by inserting the names of the Guardians in your Will.
You can also make provision for the income from your estate, and
if necessary parts of the capital, to be made available for the
children’s maintenance and education until they are old enough
to look after themselves and inherit your estate. You might also
for example wish to defer the sale of your home to allow the children
to be brought up in a familiar environment whilst your Guardians
care for them there.
How much does a will Cost?
Surprisingly little. The vast majority of Wills are straight forward
and cost no more than £60 plus VAT. If you and your spouse/partner
make mutual Wills at the same time the cost per Will will be even
less. Even if a complicated Will costs you more money it is a good
investment which will give you and your family peace of mind.
What do I do now?
To make a Will (or change an out of date one) you should in the
first instance contact Margaret Riley at Norcliffe &
Co or e-mail margaret@norcliffe-law.co.uk.
She will arrange either for you to come in and see her to discuss
your wishes or, will arrange to visit you at home if you are elderly,
disabled or otherwise housebound. After an initial meeting and discussion
we will send you a draft Will for you to look at. Once you have
agreed the draft we will prepare your Will in a final form for signature
by you and, once it is signed keep the original Will for you in
safe fireproof storage free of charge..
Points to note
There are some circumstances which will automatically change your
Will. Marriage will automatically cancel any Will you have made.
Divorce makes gifts to your former spouse and his or her appointment
as your executor invalid. In such circumstances we would strongly
advise you to make a new Will. If nevertheless you simply wish to
make a small addition, alteration of deletion to your Will you can
add what is called a "Codicil". It is important that you review
your Will on a regular basis - say every 5 years - as personal circumstances
change. You should also consider making a ‘living Will’
i.e. an Enduring Power of Attorney. This will allow your Attorney
to look after your affairs, financial or otherwise, should you become
mentally incapacitated.
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