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Making your Will – the contents of a will

You may be considering what to include in your Will or you may be an executor who has received a copy of the Will and wish to understand it. It is also important that formalities the legal of a Will are followed when creating any Will or checking that it is legally valid. Further information on the formalities of a Will can be found here

Wills are varied in both their content and the language used, which can sometimes make them difficult to understand. There are certain clauses that should be present in a Will before looking at any legacies.

In addition, it is recommended that Wills should be reviewed about every five years or sooner if your circumstances change dramatically. Make sure, if you are a named executor that you do have the most recent Will.

The Opening Clause
The Revocation Clause
Funeral Wishes
Executor Clause
Trustees
Guardians
Types of Gift or Legacy
Beneficiaries
Gifts to Charities
Claims against the Estate

The Opening Clause

Traditionally the opening clause will identify the person making the Will who is known as the testator. A female testator may also be known as a testatrix. The latin terminology is become less common and is being discouraged, although a lot does remain in wills.

This clause should name the testator using their full name and any other name they are known by. Any name that may have been used in legal documents or on bank accounts should be included. The full birth certificate name should be indicated with the addition of ‘also known as.’ The last known address should also be included in this clause.

Don’t panic if you are the executor looking at the Will after the testator has died and the address of the person is no longer correct. Provided there is evidence they have lived at the previous address this will be sufficient but it may be worth considering whether a more recent Will had been prepared that would need to be found. More information on how to locate the Will can be found here (link– Locating a Will and checking its validity)

It is also common to find the words ‘the testator’s last will and testament’ which indicates that the person making the document intended it to be a Will.

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The Revocation Clause

This clause makes the testator’s intention clear that any previous Will or documents amending the previous Will are to be ignored or revoked and supports the testator’s intention that this new document is to be given the effect of a Will.

The revocation clause will also revoke any foreign Will that was previously created so it is important if you have made such a Will in another Country previously, that you seek advice on the effect of the new Will on any foreign assets you are dealing with. It would be sensible to seek legal advice in this situation to ensure all the assets are dealt with correctly and that you are not going against any laws in the other country that may exist regarding how you can deal with the foreign assets.

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Funeral Wishes

In older Wills, it was common to see this type of clause stating what funeral wishes someone had. This is less common now. The funeral wishes clause is not binding on the executors although there is of course strong moral weight to be given to them to follow the wishes of the person who has died.

Generally funeral wishes will be conveyed to those people who will be dealing with the funeral when the time comes. This can be done by way of a letter to the relevant person or just by speaking to them. If a letter is prepared it is sensible to keep a copy of it with the Will, as well as providing the people who will be dealing with the arrangements, a copy.

If you have arranged a funeral plan, it is still a sensible idea to include this in the Will so that the executor knows who to contact for the plan to be dealt with. You should include the funeral director’s details and the policy number. Keeping the policy secure with your Will is also a good idea. Further information on funerals can be found here (link – Funerals)

If the person has given no indication of their wishes then the assumption is that a cremation would be appropriate. If you wish to be buried it will be necessary to organise your burial plot before the time comes. Any papers confirming the plot location and the fact that the plot has been purchased should also be kept safely with your Will, letter of wishes and funeral plan if necessary. If you do not keep all these papers together, do make sure that the people who will be making the arrangements know where to locate the necessary information.

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Executor Clause

If you are taking the time to prepare your Will it is also sensible to include executors. These are the people who will deal with your estate when the time comes. If you do not include executors the Court will appoint one of your beneficiaries to act instead. The person(s) appointed in this situation will be known as administrators. This would also happen if the executors you appointed in the Will did not wish to act and revoke their appointment or were not capable of acting.

When deciding who to choose to deal with your estate there are many factors to consider. If your Will is particularly complex or you have a very large estate including many different types of assets or maybe some foreign assets, it may be worth considering appointing a professional to deal with the estate. There will of course be charges associated with a professional acting, but it could be money well spent. You know the estate will be dealt with following the law from the outset. Non-professional executors can get into difficulties with complicated estates, which can cause further work in unravelling the problems if they later decide they cannot deal with everything and wish to then instruct a professional to act on their behalf.

Many people choose relatives to be their executor which is generally sensible. They know you and may be the best people to deal with the distribution. However, if you anticipate there may be problems between family members when the time comes, or all your relatives that you would trust to deal with matters are quite elderly or infirm, then it may be sensible to consider further who you appoint.

You can appoint as many executors as you wish although only four can be authorised to act when the time comes. It is also worth bearing in mind the logistics of four executors checking everything and signing the necessary forms, applications and documents that will be needed.

It is probably more sensible to appoint one or two executors in the first instance and a couple of substitute executors who can replace the first executors if for any reason they were unable or unwilling to act.

Remember this is your choice and not something anyone should be deciding for you.

 

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Trustees

If a trust is created in the Will then you will also need to consider whether you need additional people to act as trustees. The executors manage, administer and distribute the assets, and trustees run the trust.

Where executors and trustees are required, it may be practical and convenient to appoint the same people to perform both functions. If you do not name specific trustees, the executors can become the trustees or they can appoint trustees to deal with the trust created.

The trustees must be able to demonstrate that they have discharged their obligations correctly and to the correct beneficiaries. A trust may run for many years so be aware this duty could carry on for some time and the trust assets must be managed during this time. Professional executors who become the trustees will be able to charge for their work. Individuals who are not appointed in a professional capacity can only claim their reasonable expenses.

Whoever you decide to appoint as your executor and/or trustees it is important that you discuss this with them before finalising your Will. Dealing with a straightforward estate involving maybe a property and a bank account and savings account is not onerous and there is plenty of help out there. However, things can become more complicated if the assets are more difficult to deal with or you anticipate there may be some feuding over the Will so taking the time to talk to your proposed executors and or trustees is really important.

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Guardians

If you have children below the age of 18 years or you anticipate you will have children below this age when the time comes then a Guardian clause should be included in your Will.

Any parent with parental responsibility (since December 2003, this is anyone married or not, who is named on the child’s birth certificate) can appoint one or more people to be a child’s guardian. This does not have to be in a Will but a clause in the will would be sufficient.

The appointment of the guardian takes effect on the death of the parent provided generally that there is no surviving parent with parental responsibility for the child. If there is a surviving parent with parental responsibility, then the appointment of the guardian takes effect only on the death of the surviving parent. It is of course preferable, if possible, for both parents to agree what would happen to any children, in the event they both died.

Who would be best placed to become the child(s) guardian?

If there were a dispute over the care of a child then the Courts would have the final say, looking at all the circumstances. If you have named a guardian in your Will this may also be taken into consideration. If you were survived by the other parent who has parental responsibility it does not mean that your wishes in the Will would take precedence. It will be the Courts decision.

When considering who would be an appropriate guardian it is really important that you discuss this with the potential guardians. There are a lot of factors to consider not least what is best for your child. Any child who has lost their parents will have their own issues to deal with and uprooting them from all they know to send them to their Aunt in Australia may not be the best outcome for them? The child’s age, what stage they are at in their education (for example, have they got important exams looming), who they are close to, both friends and family, the age of potential guardians and how they would cope taking in a child or another child into their family home, all need to be considered.

As far as any financial assistance goes for the guardian, if legacies have been left to the children then the guardian can approach the executors or trustees for funds to be released from the inheritance, for the child’s welfare and benefit, before the age the child is able to take the legacy as the beneficiary.

It would always be advisable for the testator to prepare an expression of wishes to assist the trustees in their duties. The wishes can include guidance on what sorts of things they would expect the guardian’s to be financially assisted with. This could be for a first car and driving lessons but maybe pointing out that a Ferrari would not be appropriate, or assistance with a deposit for their first flat. If you would expect your child to have a family holiday with their guardians, would the guardians be able to fund this and if not what financial assistance would you feel is appropriate to enable such holidays to take place.

Should school trips or school fees be funded from the child’s legacy?

An expression of wishes is purely for guidance. It is not legally binding on the trustees but there would be a strong moral obligation to act on the wishes. It will also assist the trustees in making decisions about releasing funds from a legacy when they are approached by a guardian. The expression of wishes can be changed at any time before you die so that the changes in what would be expected for the child as they become older are reflected. If the expression of wishes is changed just make sure that you refer to the date of the Will and sign and date the wishes. Don’t forget to keep a copy with your Will so that it can be found!

You could of course include a clause that the guardian could be given the child’s legacy to manage themselves. There could be risks with this in that the child never receives any of the legacy when they reach the age stipulated in the Will. Hopefully you have chosen the guardian wisely and provided any legacy were used for the child’s welfare and benefit this may not be an issue, but if this were not the case then the child would potentially have to take the guardian to Court to right this.

Choosing the correct guardian for your child is one of the most important considerations. You should also consider whether a named guardian is still the most appropriate person as the child gets older. Check regularly and if necessary up-date your Will.

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Types of Gift or Legacy (under a Will)

If a Will was not valid or there is no Will then the Rules of Intestacy will be followed (link). In this situation, you will only be dealing with the residue of the estate, no other legacies will be relevant.

There are different types of gift, also known as a legacy that can be left in a will. A will can also contain directions as to when someone should receive their legacy, for example an age or a condition that must be complied with before the gift can pass to the beneficiary.

The most common gifts that you will find are as follows:

General gifts

sometimes known as non-specific gifts would be a gift that does not refer to any specific item, such as all my personal belongings. It is something to be given from the testator’s estate.

Specific gifts

is a gift of an identifiable item, a particular group of items or property, for example, my gold jewellery or my painting by Joe Bloggs of a sunset. The item must be described sufficiently to identify it and distinguish it from the other assets in the estate. The item will also generally be described as ‘my’ item.

If before the person died they have sold the specific gift, given it away or otherwise disposed of it then the gift will fail. This is called ademption, the gift is said to have addeemed. For example, in the will a gift of all my gold jewellery is made to someone and the jewellery was sold before the person died, then the beneficiary will receive nothing under the Will.

Demonstrative gifts

may be a combination of special and or general gifts. It is a gift that must be paid from a specific fund which may or may not be owned by the testator at the date they die.

If when the Will was made the person did not own the item then it will not cause an ademption situation. If the testator left 100 quoted shares in Bloggs Company Ltd but had never purchased the shares and the company still exists then the shares will need to be purchased with money from the estate. This may involve selling other items in the estate to fund the purchase. If the company no longer exists when the person has died, then the gift may fail.
However, if the item was owned by the testator when the Will was written then this is more akin to a specific legacy and will be treated as such. If the gift is no longer in existence when the person dies, then the gift would adeem, so the beneficiary would receive nothing.

Pecuniary gifts

these are simple gifts of money. Leaving £500 to each grandchild would be an example.

Residuary gifts

this is a gift of what is left in the estate after all debts, expenses and any other legacies or gifts have been paid. The amount left is called the residuary estate or residue. Usually, unless the Will states otherwise, all the debts, expenses and other gifts are paid out of the residue before it is distributed. An example where this may not be the case would be where the residential home is left to someone under the Will that states the gift will be subject to any mortgage on the property. This means the person who inherits the property will be responsible for the outstanding mortgage. The mortgage would not be paid off from the residue of the estate.

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Beneficiaries

A beneficiary is someone who has been left a gift or legacy in the Will. Some types of beneficiary attract certain rules which are explained below.

Child beneficiaries – if a gift is left to a child and they are under the age of 18 when the person dies, they are unable to give what is known as valid receipt for the legacy. The legacy is therefore held on trust for them until they reach the age of 18 or later depending on the wording of the Will. The gift is conditional so the beneficiary would not receive their gift until the condition is met, in this case the age stated in the Will. Other conditions can be included in wills preventing the gift passing to the beneficiary until a condition is met, such as only receiving the gift provided no other claim is made by the beneficiary, against the estate.

You can make a gift to a child conditional upon them reaching a certain age. Stating a child should reach the age of 25 before they receive their gift may be sensible, particularly when dealing with a large gift or the residue of an estate. I may be doing younger adults a disservice, but I wouldn’t trust my son to inherit a large sum at 18!

If the legacy is conditional there will be some tax implications for child beneficiaries. Income earnt on any capital sum would have to be declared as income of the child and any tax due paid. The trustees would be responsible for dealing with this until the conditional age is reached. Any legacy can be used for the child’s welfare or benefit while it is held for them, for example school fees, university fees or driving lessons, although the trustees do not have to agree to all requests made to them. This may mean the child does not receive the original sum left to them under the Will, but provided the trustees can show that any use of the funds was for the child’s welfare or benefit, supported by evidence of where the legacy has been used, this would be acceptable.

Wills can have a provision allowing the executors/trustees to pay the legacy to the child’s parent or guardian. As with guardianship there could be issues if the parent or guardian does not hold the money appropriately until the conditional age is reached. It would then be for the child to sue the parent or guardian.

Beneficiaries who have died before the testator – if the person you have left a gift to dies before you, the gift may lapse. The gift would then be included in the residue unless there is a contingency or substitute, in the Will. There are some situations where a gift would not lapse.
If a person leaves a gift to their own child and that child died before them, leaving children of their own, the testator’s grandchildren, then the child’s gift would be divided equally between their children. This is known as per stirpes.

If a residuary beneficiary dies before the testator, this gift would also lapse, unless the beneficiary is one of the testator’s children, with children of their own as above. You can make provision for a substitute residuary beneficiary or for the beneficiary’s own children to receive the residue if you so wish.
If you did not make provision for a substitute residuary beneficiary or it was not a contingent gift, so the residuary gift lapsed, then the strict rules of intestacy would come into play. The rules would then determine who inherits the residue of the estate. This could mean that your estate does not pass to the people you would like it to.

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Gifts to Charities

The testator may wish to leave a gift or the residue to a charity. Any gifts to charities will be tax exempt and therefore not reduce the testator’s available nil rate band allowance (as at April 2017 £325,000). In addition, if a testator leaves 10% or more of their estate to a Charity and inheritance tax is due then the calculation of any inheritance tax will be reduced to 36%, rather than 40%.

You can also request that any gift or residue left to a charity be used for a particular purpose. This would be conveyed through a letter of wishes that should be kept with the Will. As with any expression or letter of wishes this is not legally binding, although there is significant moral weight attached to these wishes.
If a charity gift is made then you should include the charities full name, address and Charity Number (if possible). These are easily located on the charities web pages, generally in the contact section or at the bottom of the web page.

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Claims against the Estate

There is protection in place for those people, spouses, partner’s and anyone who is wholly or partly maintained by the testator at the time of death, to make a claim against the estate, if they do not receive sufficient provision under the Will.

In these circumstances, a claim could be made under the Inheritance (Provision for Family and Dependants) Act 1975. It is an important consideration for anyone making a Will. If a testator chooses not to include a dependant in their Will, then it is important to prepare a letter to sit with the Will, explaining their decision. The Court does not have to follow the letter but it may help explain your decision, which the Court would take into consideration. This may not prevent the Court ordering the estate be distributed in a different way to the Will, but will be a factor for the Judge to consider that may help defend any claim made against the estate.

Claims against estates are time consuming and costly. If the person making the claim is successful then the costs of the claim could also be taken from the estate which can reduce the available estate funds considerably, thus also reducing the amount available to be distributed to any beneficiaries.

This is an overview of the most common things that you will see in a Will or that you may need to consider when making a Will. There are many variations which you may require assistance deciphering as an executor. There are also many other options available to a person considering their Will which will depend on your personal circumstances and the assets that you own. It may be necessary to consider how a spouse or partner will stay in the home if they are not named on the legal title for instance. There are ways to protect individual’s rights to remain in a property but it is important to obtain qualified legal advice to ensure that your wishes are clear and achievable. There are many options available but it is important to be guided both to assist with allowing your wishes to be honored, tax planning considerations and to explain any issues that may arise once you have gone.

Once you have finalised your Will and all the legal formalities have been complied with do ensure it is stored safely and securely and that your executors know where it can be found when the time comes. Don’t just forget about it though. It is recommended that your Will should be considered every five years approximately or sooner if your circumstances change dramatically.

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Please note that information which we provide in our guides is in outline for information purposes only. The information is not a substitute for advice from a professional adviser. We cannot guarantee that information provided by our guides will meet your individual needs, as this will depend on your individual circumstances. You should therefore use the information only as a starting point and always seek professional advice if you are unsure.

Guides & Letters

If you have recently lost someone and believe that you are the person who needs to deal with their estate, these guides may help you. The guides will assist you in all the steps necessary to deal with a simple estate, that is below the threshold to pay any Inheritance Tax, from registering the death to distributing the estate.

Probate

Registering the Death
Funerals
Locating the Will
Checking the Validity of the Will
Executor or Administrator?
Do I need a Grant ?
Valuing the Estate
Distributing the Estate
Intestacy Rules


Wills

Why make a Will ?
Why use a Lawyer to prepare my will ?
Making your Will ( contents of a Will )

 

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