Why do I need a Will?

Why do I need a Will?

You should make a Will as it is the only way that you can have a say in what happens to your assets. If you die without a valid Will, your assets will be distributed according to the rules of intestacy set out in legislation.

These rules apply to people who die without having made a valid Will. Although the rules may suit you, they usually do not for the following reasons:

  • The legal procedures involved to distribute your assets under the rules of intestacy are complicated and may cause delays, expense, worry and even hardship to your family.

  • Your Estate may be administered by an unfamiliar and unwelcome executor.

  • Your property may not be divided as you would like.

  • Your children may be placed with guardians not of your choosing.

  • Your de facto spouse, step-children and friends may be overlooked.

  • Your children, and other minors, may be given a lump sum payment at 18 years of age (in England, Wales & Northern Ireland) or 16 years of age (in Scotland), although you may have intended for this to happen at a later age.

Frequently Asked Questions

What is a valid Will?

A valid Will is one that has been accepted by a Court and put into effect by a grant of probate. To be valid your Will must be:

  • Written, typed or printed in permanent ink (not pencil);

  • You must sign and date your Will;

  • Two adult witnesses who do not stand to benefit from the Will must be present together when you sign your Will and they, too, must sign in your presence . Ideally you would all also sign or initial each page (including back and front).

  • The Will must be an original document not a photocopy;

  • The Will must not have been revoked prior to your death;

  • The Will must appoint Executors to administer the estate otherwise Partial Intestacy Rules will apply;

  • The Will must dispose of the whole estate. If beneficiaries have died before the Testator and no substitute provision has been made in the Will for this event then the Will is not effective for the entire estate. This is called Partial Intestacy;

  • The Will must not be tampered with or altered in any way.

  • All documents referred to in the Will must be available;

  • The Will is invalid if the deceased married or entered into a civil partnership after the writing of the Will, unless the Will was stated to be written in contemplation of marriage or civil partnership;

  • You must have the mental capacity to make the Will and understand the effect it will have.

  • You must not have made it as a result of pressure from someone else.

 

If your Will is not made in this manner it may be invalid.

 

Can I make a Will myself?

 

Yes. You can draft a Will yourself. There is no legal requirement that a solicitor must do this for you. This  form will help you take the steps you need to draft a simple Will for a straightforward Estate.

 

How old do I need to be to make a Will?

 

You must be 18 years of age or older.

 

Am I free to distribute my assets as I please?

 

Generally, yes. However, you should make proper provision for your partner, children, including ex-nuptial children and any dependants you may have. If you do not, they could take proceedings under legislation to obtain provision out of your Estate depending on their needs.  In addition, you should be aware that rules relating to compulsory inheritances, known as “forced heirship” apply in some jurisdictions and that forced heirs may challenge a Will where such rules should have been applied to a testator’s Estate. There are no forced heirship rules in England & Wales or Northern Ireland.

 

What happens to property in joint names?

 

Property that you own as a “joint tenant” will, after you die, automatically pass to the other owner regardless of what is stated in your Will. Property that you own as a “tenant in common” will mean that your asset is broken into shares and your share can be passed onto your chosen beneficiary by your Will. You should talk to us or get other expert legal advice if you are not sure about the ownership structure of your assets.

 

How can I make sure my wishes are carried out?

You should nominate a person in your Will called an Executor to handle your affairs after you die. You can name more than one person to act as Executor. You should generally not name more than four people. You can choose anyone who is 18 years of age or older and has legal capacity to be your Executor. This could include: your partner, family member, a friend, your accountant or solicitor. However, you should first ask them if they are prepared to take on the task and confirm with them that they have been appointed. Being an Executor is a very responsible position and is a role that should only be entrusted to someone who you trust.

The Executor has to obtain probate of your Will and pay any taxes, debts or expenses before finally distributing the balance to the beneficiaries named in your Will. The responsibilities of an executor can be onerous and are for life.

 

Can I change my Will if I change my mind?

 

Yes. You can change your Will at any time. If your circumstances change then you can and should amend your Will. However, you cannot simply make a change by, for instance, crossing something out on your original Will and writing in your new wishes. After your Will has been executed (that is, signed by you and the witnesses), you must not rub out, erase or in any other way alter your Will once it is completed (as that could invalidate the whole Will). If your changes are minor and your Will has not been revoked, you can make a Codicil (a separate document in which you change a provision in your Will) but it is often less complicated and easier to make an entirely new Will. Your new Will should say that it cancels any earlier Wills.

 

How can my spouse or civil partner and I ensure our Wills are consistent?

 

You can each sign a separate Will that has been drafted in similar terms. These “mirror Wills” mean that if there is an accident involving the both of you, your Wills are consistent.

 

What if I marry, divorce or enter into a civil partnership or dissolve my current civil partnership?

 

If you made a Will before you married or entered into a civil partnership, it will automatically be revoked when you marry or enter into a civil partnership, unless it was expressed to be made in contemplation of a particular marriage or civil partnership. So if you marry or enter into a civil partnership, it is more than likely you will need to make a new Will. Any gift or appointment (e.g. as an executor or guardian) in favour of a former spouse or formal civil partner in your Will is generally automatically revoked when a divorce decree becomes absolute, a decree of nullity is made or a civil partnership is dissolved, unless a contrary intention is expressed in your Will. Separation does not affect a Will in the same way as divorce, so it is best to review a Will as soon as separation occurs. If your former spouse or civil partner is named as Executor then generally upon divorce or dissolution he or she will no longer be allowed to act as Executor or obtain probate of your Will. It is therefore in your best interest to make a new Will if you are divorced, your civil partnership has been dissolved or you have been separated for an extended period.

 

What if I change my address?

 

Your Will does not have to be updated if you (or any of your witnesses) change address. Address details are only used to help identify you and your witnesses.

 

What happens to my Pension?

 

Your pension rights may pass outside your Will. Your employer or Pension Scheme will be able to provide you with more information. In most cases, you will be able to name the person who you wish to benefit from your pension on a form provided by your Pension Scheme.

 

How is my life insurance affected?

 

The payout on an insurance policy that you own directly at the time of your death normally forms part of your Estate. It will be subject to your Will unless there is a specific person (or persons) nominated on your policy as your beneficiary (and there is a trust in place, either because you signed a trust form or, for example, if it is life assurance provided by your employer). If there is a specific nomination under a trust, then the money may be paid directly to that person. In that case you will generally not need a Will to distribute those funds for you.  You may wish to take separate legal advice as to the treatment of your specific policy.

 

What if my Will is lost or destroyed?

 

You must immediately write a new Will if your existing one is destroyed or lost. This is because your Will must be in writing to be valid.

 

Does my Will need to be written in English to be valid in England, Wales and Northern Ireland?

 

No, your Will doesn’t need to be written in English. A Court will still uphold it as valid if your executor obtains an authorised translation and can show that you knew and approved of the contents of your Will.

 

What if I have a visual impairment or disability that stops me reading or writing properly?

 

You should still make a Will to ensure your assets are distributed according to your specific wishes. However, you should contact us or seek other expert legal advice to ensure that your Will is put together in a legally binding way – that is, properly drawn, signed and witnessed in light of your impairment or disability.

Why do I need a Will?

We hope you found our Why do I need a Will? section useful. If you have any questions for House Of Wills regarding this and would like to speak with a member of our team at our Stockton-on-Tees office, please visit our contact page or give us a call and we will do our best to assist you.