Making your Will
Wills – Trigger Points For All Of Us
We all know that a Will is something that we should all get around to, but in reality it becomes one of those things that gets put way down the list of priorities, unless something happens in your life to a family member, friend or colleague.
We are here to help you, just like we have helped thousands of individuals, families and businesses over the past 30 years.
There are always trigger points in our customers lives, some are happy and some are obviously difficult. That is why we are here for them.
Some of the key trigger points to make you consider putting a Will in place, or updating an existing Will can include:
- The birth of a child or grandchild
- Moving house
- Death of a family member
- Setting up a business
- Someone in your Will dies
- You inherit money
- The size of your estate increases
We passionately believe that everyone should have their own personal Will put in place to ensure that what you have worked so hard for, passes to the people you decide, at the right time.
A Will is the only legal document that allows you to state clearly who should be appointed as Guardians for your children. If only for that reason, surely every parent, with children under 16 years of age, should put a Will in place.
The vast majority of people put off making a Will, believing that the people they would wish to inherit will automatically do so or, because they think having a Will drawn up is too complicated or expensive.
The reality is that without a Will, even the most seemingly insignificant assets may go to the wrong person or to the State. At Portcullis Legals, we provide Will drafting services that are cost effective and presented in plain English so that the entire process is easy and seamless for our customers.
Our aim is to make it as easy as possible for you in a friendly and approachable way.
If you do not have a Will:
- Minor children could be taken into care whilst Guardians are appointed
- Your spouse or civil partner will not automatically inherit ALL of your estate
- Common Law partners may not receive anything at all
- People outside of your immediate family are unlikely to benefit
- Lengthy disputes and delays are likely to prevent your beneficiaries from receiving the funds they need to settle your estate and benefit in the way you intend
- Take control into your hands and contact us today.
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What is a Will?
A Will is a legal document that gives you the power to decide what should happen to your estate when you die. It is an invaluable opportunity for you to clearly lay out your intentions and wishes. You can also make sure you don’t pay more Inheritance Tax than you need to. If your personal, property or financial circumstances change, you should change or update your Will. Your Will can be changed at any time during your lifetime provided you retain capacity. It’s very important that the wording used in your Will is clear and legally effective. Many people prefer to use a professional Will writing service for this reassurance.
What can I leave in my Will?
You can say exactly what you want to happen to your property. Most people choose to keep their Will as simple as possible and so gift all of their estate (as one lump – called the “residuary estate”) rather than try to break it down into individual amounts or items. However, you may, if you wish, gift: Property – either as an outright gift or to give someone the use (only) of it for a period, say, until they remarry with the instructions that once they have remarried the house is to be sold and the proceeds shared among other members of your family nominated by you. All your house contents (chattels). Specific sums of cash – with or without an inflation adjustment. Gifts of personal belongings that are special to you and the person to whom they are given. Gifts to charities that are free of Inheritance Tax. Specific investments e.g. shares, PEPs, TESSAs. Businesses – either an outright gift or the first option to buy it from your estate. Residue i.e. what’s left after all other gifts have been made and all your outstanding liabilities have been settled, including your testamentary expenses which are funeral costs, probate fees and Inheritance Tax.
What else can I do in my Will?
You can also Appoint Guardians to look after your young children. Choose who you want to be your Executors and Trustees. Give directions regarding your funeral. Give directions on whether you wish to donate your organs or donate your body for medical research. Stipulate how your pets are to be provided for.
Do I need a Will?
Virtually everyone has something to leave behind even if it’s just their personal possessions. It doesn’t matter how little you think your estate is worth, it is important that you make a Will. Even if you do not have much money or property now, that doesn’t mean that you will not have more to leave when you pass away at some point in the future. As no one really knows when they are likely to die or how much they will own, it’s recommended to get a Will written so that your wishes are clear.
What happens if I don’t have a Will?
Dying without a Will is called dying intestate. If you die intestate, your wishes are not taken into account and your relatives and friends could face severe difficulties. Although you may not like it, the law will decide what happens to your estate for you, which may not be what you would have wished. Your estate and property will be divided and distributed under the intestacy rules, according to the Administration of Estates Act. If you’ve married, or are in a civil partnership and have children, your spouse will get your possessions and the first £250,000 of the rest of your estate. Anything more is split in two: half to your children under 18, half to your spouse. If you have no living family members, all your property and possessions will go to the Crown. Portcullis makes it quick and easy to write a Will. Though it may seem daunting now, writing a Will makes things easier for your family during what will inevitably be a difficult time.
What is included in my estate?
Your estate consists of everything you own at the time of your death after all your outstanding liabilities have been settled. This includes your house (less any outstanding mortgage or other loans secured on it), cash and savings, your car, household and personal effects, proceeds from any life assurance policies and pensions where there isn’t a named beneficiary or the plans are not written in trust LESS any outstanding loans, credit card balances, household bills, funeral expenses, probate costs, inheritance tax (if applicable) etc Your estate doesn’t include money in a joint account or property or shares owned jointly. Also not included, life insurance policies in joint names and those where you have already nominated who the beneficiary should be on your death. If applicable your employment death in service benefit and pension is also not normally included as these are held in trust for whomever you may have already nominated. It is, however, sometimes recommended by trustees that you mention in your Will who you would like to benefit – although trustees are not legally bound by your expressed wishes in your Will.
What must I do before my Will becomes valid?
Two independent people aged at least 18 years old, who are of sound mind must both be present when you sign and date your Will. Your witnesses do not need to know the content of your Will. The witnesses cannot be: Blind Your spouse or civil partner Beneficiaries in your Will Spouses or civil partners of beneficiaries in your Will Anyone related to you.
I’m getting married. What impact will this have on my existing Will?
Marriage or civil partnership will automatically cancel an existing Will. However in situations such as where a Will is drawn up just prior to you getting married, the Will can contain a sentence providing for the pending marriage or civil partnership.
If I divorce, will this affect my Will?
Divorce doesn’t automatically cancel a Will. If you get a Divorce or annulment after you have made a Will, any appointment of the former spouse as an Executor will be invalid. Furthermore any gift in the Will to the ex-spouse will be cancelled and treated as if they died on the divorce date (unless the Will states otherwise). We strongly advise that you should write a new Will whenever there is a major change to your circumstances. If you are unsure, please do not hesitate to contact us on 01752 401401.
What happens if I leave someone out of my Will?
The law permits you to write your Will as you wish. However if you fail to make provisions in your Will for someone lawfully considered as a dependent, a claim may be brought against your Will for Reasonable Financial Provision under the Inheritance (Provision for Family and Dependants) Act 1975. The list of dependants includes: Spouses. Ex-spouses (if the have not entered into a subsequent civil partnership or marriage). Recently separated partners. Civil partners. Ex-civil partners (if the have not entered into a subsequent civil partnership or marriage). Co-habitees. Children. The claim may result in the Court altering your Will to provide for any dependants. If you do wish to exclude anyone who may be considered as a dependant from your Will, your reasons for this should be given in your Will or in a separate letter referred to in your Will. If a claim is brought, the Court can then consider your reasons, however the reasons will not bind their final decision.
Can I make provision for my children?
Yes. However, the law defines ‘children’ for these purposes as your natural children and any that you have legally adopted. Your stepchildren are not included in this definition and so, if you wish to provide for them, you must mention them by name in your Will. You can also include your children as beneficiaries in your Will even if they are very young. It is sensible to consider the age you would like your children to reach before being able to access their inheritance, typical ages are 18, 21 or 25. Whilst the child is under the specified age, their inheritance is managed on their behalf by people called Trustees. You appoint your Trustees in your Will. If you have children at the moment and wish us to include others not yet born then we can include the words…” and any other children of mine not yet born”
What are Guardians?
A Guardian is appointed to look after your children, whilst they are under 18 years old, if there is no other person with parental responsibility alive at the date of your death. You should choose your guardians carefully and discuss with them if they are willing to take on the role of Guardian in the event of your death. Importantly, if you and your partner have joint children, but are not married and the father is not on the children’s birth certificate then the mother of the children will need to appoint him as a Guardian. This is because under current law, he does not have any automatic rights to the children if she passes away first.
Should I appoint Guardians?
If you have children under the age of 18 it is vitally important to appoint a Guardian or Guardians. Guardianship is one of the main reasons why parents make sure they have a valid Will in place.
What are Executors and what do they do?
Your Executor is named in your Will as the person or people responsible for all aspects of winding up your affairs after you’ve passed away. This includes Arranging your funeral. Notifying people and organization that you’ve died. Collating information about your assets and liabilities. Dealing with any tax bills. Closing accounts. Finding out what assets, property and investments the deceased had. Having any valuables and property professionally valued. Listing them and their current value. Making sure the funeral takes place and arranging payment. Gaining details of outstanding debts and bills. Establishing pension entitlements and other monies due. Determining Income and Inheritance Taxes due and making any necessary tax returns. Completing and submitting all Probate Registry forms. Calling in assets. Paying off debts. Transferring gifts to beneficiaries. Drawing up clear accounts to present to the main beneficiaries. If the Will creates any trusts, for example if there are minor beneficiaries, it is usual to appoint two trustees (they can be the same as the executors unless the trust is an IOU Discretionary Will Trust in which case we recommend that the trustees should not also be executors).
Who can be my Executors?
You must appoint an Executor in your Will to carry out your wishes after you die. They can be anyone you choose, for example: Your husband, wife or partner. Your son or daughter (if over 18 at the time of your death). Your brother or sister. A close friend. A beneficiary in your Will. Portcullis Legals Ltd. It is always best to ask the person whom you wish to appoint whether they are willing to act. The duties of an Executor are varied and can be very time consuming. As a result, people chosen to be Executors, when called upon to act, often appoint a professional firm to help. The costs and expenses incurred by Executors, including the professional firm’s fees, can be recouped from the estate. One option to consider is using Portcullis. We offer the following benefits. Immediate free advice and guidance for your next of kin to help avoid any confusion after you’ve passed away. Following death, we’ll provide a fixed fee quote to your beneficiaries to carry out the agreed work. We provide your loved ones with complete guidance throughout the process so they do not need to worry about making mistakes or having the responsibility for dealing with your estate.
How many Executors can I appoint?
You can appoint up to four Executors, but you should appoint at least two. This is especially the case if there are potential beneficiaries who are not yet 18 years old. You can also appoint alternative Executors in case when you die your first choice decides not to take the position or dies before you.
Do Executors get paid?
Where individuals (family or friends) are appointed they are not normally paid although you may give them modest cash gifts in your Will as a “thank you”. They are usually allowed to reclaim any expenses incurred by them in the administration of an estate, including Probate fees. When professional Executors are appointed (individual people or organisations), clauses are usually included in a Will to provide that they be paid their normal fees. They would not act otherwise. A solicitor will often charge 2% to 3% of the value of the estate while a bank sometimes charges 4% to 6%. Portcullis offers a competitively priced, good value Estate Administration service.
What type of gift can I make in my Will?
You can make different types of gifts in your Will. Specific Gifts are gifts of items, for example giving your jewellery to your daughter or your golf clubs to your nephew. Pecuniary Gifts are gifts of money, for example giving £100 to each of your godchildren or £1000 to your favourite charity. Residuary Gifts – Your residuary estate is what is left after all outstanding debts and specific or monetary gifts have been distributed. This ensures that your remaining estate passes to your chosen beneficiaries rather than being subject to the intestacy rules.
Can gifts in my Will fail?
Yes. A gift may fail because the item has been given away during lifetime, or the estate is insolvent, in which case the Will is read as if the gifts were not made or the sum is reduced. A gift can also fail if the beneficiary has died. In this case the gift will fall into the residuary estate.
Can you tell me more about what the term ‘probate’ means?
Probate is a legal document issued to one or more people (Executors) by the Probate Registry that authorises them to deal with an estate. The registry can only grant probate, known as the grant of representation, after seeing legal proof that the person named is the executor. The grant of representation proves the executor is entitled to claim the assets of the deceased as a personal representative. The executor will be able to administer the estate, and must follow the Will and deal with the estate and beneficiaries according to law.
Can I include funeral wishes in my Will?
Yes, you can go into as much detail as you like but you must bear in mind that funeral wishes are merely wishes and do not legally bind your Executors. As a result your funeral wishes may not be carried out in the way you had stipulated in your Will.
Can I use a Will to protect my home against care fees?
In certain circumstances yes, depending upon several factors including how your home is owned. However, the area of law relating to this is very complex and requires specialist advice. For further information speak with one of our specialists about our Trust Wills.
Where should I store my documents?
When you die, your Executors will need your original Will, not a copy. Portcullis offers a low-cost storage option. If your Will cannot be found after your death, it’ll be presumed not to exist. As such, storing your documents with us will save your family further distress from not being able to find your will when you die. If you do not wish to use our storage service, you should store your Will in a safe and secure place and tell your executors and/or family where it is.
Can I use Portcullis to make a Will if I have foreign assets?
If you have assets outside the UK, or in a different country to where you permanently live within the UK in the case of property, the extent to which (if at all) the Will is successful in that regard depends on the law in force in the jurisdiction within which the assets are situated.
Can I leave a gift of property with a Will from Portcullis?
Yes. This can be done as long as the property is included in the residuary estate. The legal issues in relation to the ownership of property and how it passes on death can be complex and it requires specialist drafting to make a specific gift of property in a Will.
How do I change my Will?
You can change your existing Will by writing a new one or by creating a Codicil. A Codicil (like a Will) must be prepared, signed and executed in a particular way. We recommend that when changes are necessary you rewrite your Will. However, if you just need to update a person’s address in your Will this will not require a Codicil or new Will.
Can I use a codicil from Portcullis to make an amendment to my Will if I didn’t make my original Will through Portcullis?
Yes. You don’t need to have written your original Will with us in order to create a codicil with us. If you already have a number of codicils to your existing Will or if you wish to make any major changes, then we would recommend you draft a new Will.
What is a letter of wishes?
A letter of wishes is an informal document that can be made to accompany a Will. It is not legally binding, but is used to set out specific wishes that you may have such as special instructions for your funeral or particular wishes that you may have on how you’d like your Executor or Trustees to manage any trusts created in your Will. It can also be used to provide clarity around aspects of your Will such as why you may not have included someone as a beneficiary. You should not physically attach your letter of wishes to your Will as it may invalidate your Will.
Do I need a letter of wishes?
You don’t necessarily need a letter of wishes but it is a good idea to consider making one as it helps make your wishes known and can prove very useful for your Executors and Trustees. We would strongly recommend a letter of wishes if you have a Discretionary Trust Will, if you are excluding an individual or if you are leaving your children unequal shares of your estate.
Is a letter of wishes legally binding?
No, unlike a Will, a letter of wishes is not legally binding.
When do I make a letter of wishes?
A letter of wishes is made after you have completed your Will.