What is a Will?

A legally binding document that spells out your wishes for your assets, property and children for when you pass away.

What happens if you don’t make a Will?

If you die without a Will, the ‘rules of intestacy’ apply. Your estate will be distributed following a strict set of rules, which depend upon the value of your estate and if you’ve got any surviving relatives. Your assets could pass to people you don’t want them to go to. According to the rules your estate can only go to either a married partner or direct blood relations. If you’re unmarried and you don’t have a Will, your partner won’t inherit anything from you.

This could lead to them losing the home – in any case, it’ll leave them in a financial mess. If you have children (minors) and there’s no surviving parent, then social services decide where to place your children – they won’t have a legal guardian. Godparents aren’t a legal thing. It could take a long time to untangle your estate without a Will. Bills, mortgages and debts might get out of hand whilst waiting for funds to be released. It could be a costly process and it’ll likely cause your loved ones a lot of stress whilst it’s being sorted out.

What are the rules of intestacy?

The rules of intestacy are the governments set guidelines on where your estate goes if you die without leaving a Will with instructions. They don’t take into account your family situation or anything, such as if you have step-children, so leaving things to chance like this can cause upset in some cases. We’ve created this handy graphic which explains the rules of intestacy and who inherits if you don’t leave a Will:

rules of intestacy uk

Why make a Will?

It’s the only way to ensure your wishes are carried out after you die. In today’s complicated world, making a Will has never been more important. Greater wealth and more complex family situations can lead to a lot of confusion in the absence of a Will. Sometimes, when a family should be mourning the loss of a loved one, they find themselves having to untangle an avoidable mess.

If you’re married, NEVER assume that your spouse receives everything. Not having a Will in place can result in your nearest and dearest suffering financial consequences. If you’re not married, in the eyes of the law you’re single. Your estate could pass to other family members, not your partner – leaving them financially unstable.

What’s the role of a witness?

To be valid, a Will must comply with all of the requirements set out below, which is found in section 9 of the Wills Act 1837. No Will is valid unless:-

  1. It is in writing and signed by the Testator, or by some other person in his presence and by his direction.
  2. It appears that the Testator intended by his signature to give effect to the Will.
  3. The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the time.
  4. Each witness either:
  • attests and signs the Will; or
  • acknowledges his signature, in the presence of the Testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

The witness confirms that the Testator – the person who has written the Will – is the same person who is signing it. Each witness must then sign the Will themselves. They’ll also need to give their name, address, and occupation.

Who can make a Will?

Anyone over the age of 18 with ‘testamentary capacity’ – this means the mental capacity to understand and make a Will. You must understand:

  • The nature and effect of making a Will
  • The size and nature of your estate (what you own)
  • Any moral claims that you ought to take into account – for example, the claims that any family members have on your estate.
  • You must not be suffering from any mental disorder that effects your ability to make a Will. (Your Will writer will be able to advise you on this.)

Undue influence is the act of someone applying pressure on a person to coerce them, essentially overpowering the individual’s own Will. In relation to Wills this could be pressuring a person to include certain provisions in their Will. This could be through outright threats to the Testator, or by more subtle means.

Can I change my Will?

As long as you have testamentary capacity, you can change your Will whenever you want. We recommend that in order to keep up to date, you review your Will every 2-5 years or following certain big life events – such as marriage, divorce, new births, deaths, or drastic financial changes.

What if there’s a spelling mistake in my Will?

If the name’s completely different then we’d just recommend re-writing the Will with the correct name. It’s not worth the confusion or disputes at probate over the validity of the Will, otherwise.

A misspelling on the Will could cause it to be misinterpreted. It will need to be clear who the intended Beneficiary is – a simple typo could cause a lot of trouble. Whilst this will NOT invalidate a Will (or any other legal document), it can cause unnecessary issues to arise. If there is a typo in the Will, please get in touch with us and we’ll advise you how to proceed.

What if my date of birth is wrong in my Will?

A date of birth isn’t needed to make a Will and its inaccuracy doesn’t make the Will invalid. If you want to correct it, you could:

  • Arrange with us, in the presence of 2 witnesses, to correct the date of birth. We’ll initial where the change has been made.
  • Or, we can re-print the Will and you can re-sign it in presence of 2 witnesses.
  • If you change the Will yourself and don’t have it witnessed, the change probably won’t be valid. The Will as originally enacted will still stand as the valid Will.

What are Mirror Wills?

Mirror wills are two separate wills, usually made by a couple. As the name suggests, they mirror each other. They normally appoint the same Executors and make the same gifts (although they can differ in small things, like his watch to… / her earrings to…). If you and your spouse make Wills leaving everything to each other and then your children, these are simple mirror Wills.

Do I have to choose a solicitor to make my Will?

Nope, you don’t. You CAN use a solicitor, but they’re expensive and they tend to work in a range of areas of law as well as Estate Planning. If you chose a specialist Will Writers like Vital, you can guarantee that we’re completely up to speed with the current regulations around Wills (that is literally all we do!). We’re regulated and members of the Society of Will Writers, so you know we’re held to a strict code of conduct. We’re also much more cost-effective.

Read more about why to choose us over a solicitor here.

Still got questions? Get in touch with our team to discuss Wills, Trusts or LPAs and how they can benefit you.

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What are the pitfalls of a DIY Will?

We don’t recommended that you make a DIY will because it’s so easy to get wrong – especially if you haven’t had professional advice. It might seem like a convenient, safe way of doing things, but using DIY Wills can be very risky – they aren’t tailored to your exact circumstances, so you can’t guarantee they’re going to be suitable for your needs.

What are the pitfalls of low-cost or pre-paid Wills?

Low-cost, or pre-paid, Wills might seem like a very cheap, easy way of getting a Will but they’re very risky. In the past, clients have took these services thinking they only cost £20, only to end up paying out hundreds – there may be hidden clauses stipulating the issuing company receives a share of the assets. Also, similar to DIY Wills, they aren’t guaranteed to be suitable for your needs.

What is an Executor?

Executors are people who you trust to deal with your estate after you’ve passed away. Broadly speaking, their duties include:

  • Locating all of your assets
  • Paying your funeral expenses and any outstanding debts
  • Making sure that your estate is distributed to your Beneficiaries

They basically carry out your wishes.

How many Executors can I have?

You need at least one. You can name as many as you want, but only four can act at any one time. If you want to name more than four people, it’s best to name the additional people as reserve/substitute Executors.

Can my Beneficiaries be my Executors?

Yes. It’s pretty common to name people who will be acting as Executors (or Trustees) as Beneficiaries of your estate. Be wary, though – this has the potential to cause a conflict of interest.

Do I have to appoint a professional Executor/Trustee?

No, you can appoint your family or friends as your Executors or Trustees as long as they have ‘mental capacity’. If your estate is more complex and some of your wishes are a bit complicated then you might want to consider appointing a professional, such as a solicitor, to act for you.

What’s a Deathbed Gift? (Donatio Mortis Causa)

This is a gift made in contemplation of death and is a historic exception to the requirements of the Wills Act 1837. For a deathbed gift to be valid and binding, the gift must be made in contemplation of impending death – there has to be a valid reason to believe that death is imminent, such as a terminal illness. It’s a bit archaic, taken from Roman law, but they can still be legally valid. They’re very often disputed, however.

Does a Beneficiary have a right to see the Will?

Only an Executor has the right to see a Will (so they can administer the estate). The Beneficiary can normally only see the Will once it becomes a public document. They can, however, pay to see the Will, or the Executor let them see it, if they decide to. If, for whatever reason, the Beneficiary does have a copy of the Will, they’re under no legal obligation to show it to any other relative.

Can I express my funeral wishes?

You can, but keep in mind that in most cases the funeral takes place before the Will is even retrieved. Let your closest loved ones know your funeral wishes directly – don’t just rely on leaving them in a Will, because they might not be seen until it’s too late.

What is a Guardian?

Guardians are people who you appoint to take care of any children you have under the age of 18 in case you pass away. Ask yourself – who’s going to take care of my children if anything happens to me? It’s particularly important if you’re a single parent, or if the child’s father isn’t named on the birth certificate. You should always nominate a guardian. If a child is left without parents or an appointed guardian, specified in a Will, the courts decide who takes care of them.

What should I consider when appointing a Guardian?

Most people with children already have a good idea of who they’d want to look after them if the worst happened. The main things to consider are:

  • The (choice of) guardian’s own situation and experience raising/dealing with children
  • Their willingness to be a guardian
  • Your children’s relationship with them
  • Their physical location (would your children need to be re-located?)
  • It’s also important to consider how the children would be looked after financially

Can my Executors also be my Guardians?

Yes – it’s common for the guardians to be Executors. If you trust someone to care for your children, it makes sense that you’d trust them to access the assets to provide for them. Please note that in some instances, where the guardian is a divorced/separated spouse of the Testator, they might not be permitted to have direct access to the assets, but might have to go through an alternative Executor.

Joint Tenants or Tenants in Common?

Joint tenants – when one of you passes away, the full ownership of the property automatically passes to the surviving owner, no matter what the Will says. (Bear in mind that if they may re-marry, your children could miss out – there’s a risk of sideways inheritance.)

Tenants in common – you can each deal with your share of the property separately and put planning in place to protect it. (This allows you to decide what happens to your share in a Will.)

How can you sever a joint tenancy?

It’s easier than you might think!

To sever the tenancy, a notice of severance needs to be completed and signed by all the owners. We would advise you to get 3 copies signed – one kept with the estate planner, one copy remaining with you, and the other copy stored with the Will.

You’ll also need to complete a SEV form and send it to the land registry, who’ll then update the title register.

A common misconception is that the SEV form itself is evidence of the severance – this is not the case. The notice of severance is the document which evidences your intention to own the property as tenants in common.

What affect does marriage and divorce have on your Will?

If you marry after making a Will, it’ll be invalid unless you wrote a specific clause into your Will referring to a contemplation of marriage/civil partnership.

Until the decree absolute (official divorce) is issued, you’re still classed as being married. This means your estranged spouse would still benefit from your estate. You might also want to sever a joint tenancy to prevent property passing over automatically.

Can I exclude someone from my Will?

Everyone has testamentary freedom, but there are certain groups of people who would expect to receive something from your estate and, if they don’t, they might kick up a fuss – disinherited children, for example.

You can leave them out of the Will, but they might be able to contest it under the Inheritance (Provision for Family and Dependents) Act 1975, on the grounds that the distribution of the estate doesn’t make reasonable financial provision for them.

When you write your Will, ensure an exclusion clause is added. This makes it abundantly clear that the exclusion was not an oversight, but a conscious decision.

How Can I ensure all my children receive the same financial benefits?

You can add a wonderfully named ‘hotchpot clause’ to your Will. A hotchpot clause looks at any amounts already gifted to the Beneficiaries and uses this to ensure that they all receive a completely equal share.

For example, if you have previously given a lifetime gift of £10,000 to help Child A out financially, you could add a hotchpot clause into your Will to make sure that when your assets are distributed, this is taken into account. Child B would then receive £10,000 more in inheritance from the Will, so that overall both Beneficiaries have been given an equal share.

The hotchpot clause refers to loans and gifts. This ensures fair treatment of all the children – anything gifted during the lifetime is considered as if it was an early advancement of inheritance.

Still got questions? Get in touch with our team to discuss Wills, Trusts or LPAs and how they can benefit you.

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What does domicile mean?

Domicile refers to the place you call home permanently. Your domicile is important for legal purposes such as paying taxes, voting, and claiming benefits. Residence and domicile have different legal definitions. They’re different mainly by the length of time you plan to live in a specific location – if you’re living somewhere for 10 years, that’s your residence. If you’re living somewhere for the rest of your life, that’s your domicile.

How can I plan for Inheritance Tax? (IHT)

Inheritance Tax is known as a ‘voluntary tax’ because you can do things in your lifetime to reduce the amount you have to pay. You can plan in your Will to make sure you make the most out of all reliefs, and avoid paying as much tax as you can.

Everyone has a nil rate band of £325,000 (2021/22). This is the amount they can gift on death without inheritance tax becoming payable (40% applies on anything above the threshold). On top of this, there’s also a residence nil rate band of £175,000 (2021/22) that can be used against your property if it’s being gifted to your children, or remoter descendants such as grandchildren. Both allowances are transferable between spouses.

Why write a letter of wishes?

When writing a Will, it’s important that you state your Executors, Trustees, and guardians. You also need to specify how you want your estate to be distributed. But what about your more general, trivial wishes? A letter of wishes is a useful document that you can prepare alongside your Will to provide extra guidance.

Guardians – You’ve probably considered who you’d want to care for your children if you died, and you’ve probably appointed these people as guardians in your Will. In your letter of wishes you can express exactly how you would prefer your children to be raised and how you want the guardians to support them.

Funeral Wishes – A letter of wishes could include your preferences for what kind of ceremony you want – burial or cremation. You could include everything down to what music should be played, what readings should be read, and what kind of flowers displayed.

It’s important that you let your family know what you want personally, though, as well as listing them in a letter of wishes. You don’t want the funeral taking place before the letter of wishes has been read – all your wishes will have been ignored!

Trustee instructions – If you’ve included a ‘Discretionary Trust’, a letter of wishes is recommended. Under these types of Trust, it’s totally up to the Trustees how they manage the funds and which of the named potential Beneficiaries they benefit. You might want to write a letter of wishes to guide them on how you’d like your assets shared out.

Remember, though – what you write in a letter of wishes isn’t legally binding, it’s just guidance. The Trustees should consider it when managing the Trust, though, and professional Trustees will certainly try to stick to your wishes wherever possible.

Distribution of possessions – You likely have lots of personal ‘chattels’. These are defined as ‘tangible movable property’ – this doesn’t include money, items held as an investment, or items for business purposes. It’s quite a broad definition that could include your household ornaments, jewellery, furniture and cars. If you’ve got a lot of personal items that you want to gift to specific people, the easiest way to do this is to include a clause in your Will that gifts all ‘chattels’ to your Executors with instructions that they distribute them following your letter of wishes.

Once this clause is included you can then write a separate letter of wishes to list the items you want to gift and who you want to gift them to. This is a flexible way of dealing with your personal items as if you change your mind, you can just write a new letter without having to make a new Will.

Excluding someone – If you’re purposely excluding someone from your Will, we’ll advise you on what to include in your Will and how that might impact your estate. We’d also advise you to write a letter of wishes to detail your reasons for the exclusion – this could be considered by the court if the excluded person tried to make a claim on your estate. In these circumstances the letter is sometimes referred to as an ‘exclusion letter’.

Remember, letters of wishes aren’t legally binding, but they’re useful for making sure you’re not so formal wishes are carried out.

Still got questions? Get in touch with our team to discuss Wills, Trusts or LPAs and how they can benefit you.

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What is a Trust?

A Trust is a legal arrangement where you pass over control of your assets (money, property, possessions) to another party – known as Trustees. The Trustees look after these for the benefit of a third party, known as Beneficiaries, who ultimately inherit them. Trusts are generally set up alongside a Will. Trusts are a great way of protecting your assets – you can use them to avoid sideways inheritance, or you can stipulate certain conditions before your Beneficiaries receive their share. They could also help your Beneficiaries avoid large tax bills. There are loads of different types of Trusts, so you’ll need to see which Trust works best for you.

What is a trustee?

A Trustee’s role differs from that of an Executor – even though a lot of people appoint the same person to both roles. A Trustee manages any ongoing Trusts that are created by your Will. They take over responsibility for any assets left in the Trust once the Executors have completed the administration.

Can my Beneficiaries be my Trustees?

Yes. It’s pretty common to name people who will be acting as Executors (or Trustees) as Beneficiaries of your estate. Be wary, though – this has the potential to cause a conflict of interest.

Do I have to appoint a professional Trustee?

No, you can appoint your family or friends as your Executors or Trustees as long as they have ‘mental capacity’. If your estate is more complex and some of your wishes are a bit complicated then you might want to consider appointing a professional, such as a solicitor, to act for you.

What’s a Bereaved Minor’s Trust

A Bereaved Minor’s Trust is a Trust that’s created when a gift is made to the Testator’s children, but stipulated that they won’t receive it until they turn 18. These Trusts can only be created for the Testator’s own children or stepchildren. A grandparent, for example, can’t include this Trust in their Will for their grandchildren.

What is a Vulnerable Person’s Trust?

When a client wants to provide for a Beneficiary who’s vulnerable, they might want to leave assets in a Vulnerable Person’s Trust. This could be because they don’t think the Beneficiary will be able to manage a large sum of money (dependant on the type of vulnerability the Beneficiary has). So, rather than appointing a deputy to manage the financial affairs, which is likely to be a long and expensive process, the assets can go into the Trust and be managed by the Trustees.

As a Vulnerable Person’s Trust is a type of Discretionary Trust, there must be more than one Beneficiary. You could then just select the vulnerable Beneficiary as the primary Beneficiary.

Another benefit of leaving assets in this type of Trust is that the primary Beneficiary’s means-tested benefits won’t be affected. If a primary Beneficiary receives a large inheritance outright, the local authority will look to re-assess any benefits they’re currently receiving – which could lead to the Beneficiary losing out. Placing the funds in a Vulnerable Person’s Trust means the Trustees can manage the Trust fund, so the primary Beneficiary continues to receive their benefits.

What is a Flexible Life Interest Trust (FLIT)?

Flexible Life Interest Trusts (FLITs) are sometimes described as “the ideal modern family Trust.” This is because it allows a person to benefit immediately on the death of the Testator, while at the same time protecting the assets for others, for example the children.

A FLIT arises when a Beneficiary, normally a surviving spouse, is given a life interest in the assets contained in the estate. The Trustees have the power to pay income and often capital to the life tenant. While the life tenant is alive, the Trust is treated as an interest in possession Trust. However, on the death of the life tenant, the Trust automatically turns into a Discretionary Trust and is therefore treated as a relevant Property Trust.

These types of Trusts are flexible and ideal when the Testator wants to provide for their surviving spouse during their lifetime, but also wants to protect the assets in the Trust for the Beneficiaries – these Trusts can be valid up to 125 years.

What’s a Discretionary Trust?

A Discretionary Trust is a Trust that gives Trustees complete control and flexibility over when and how they distribute the assets. With a Discretionary Trust, the Testator chooses a ‘class’ of Beneficiaries. None of the Beneficiaries are guaranteed to inherit anything – the Trustees use their discretion to distribute the assets as they see fit. Because of this, the Testator will probably want to write a letter of wishes to accompany the Will, providing guidance to the Trustees. Please note, though – a letter of wishes isn’t legally binding. The Trustees could completely ignore it if they decided – they don’t have to follow it.

What is a Purpose Trust?

An invalid Trust – a Trust set up without defined Beneficiaries intending to benefit a specific purpose (unless that purpose is a charity). All non-charitable English Trusts must have a Beneficiary and a Trustee. This is known as the Beneficiary principle.

What is a Property Protection Trust (PPT)?

Property Protection Trusts (PPTs) are one of the most common types of Trusts included in Wills. Joint owners of a property can set up a PPT. Upon one’s death, the deceased’s share of the property is put into the Trust. The surviving partner, known as a ‘life tenant’, can carry on living in the property either for the rest of their life, or until certain conditions are met – for example, it might be specified in the Trust that the agreement ends when the surviving spouse remarries.

Because the deceased’s share is put into the Trust, this means that if the survivor requires long term care, at least half the property is preserved for the benefit of their Beneficiaries – it isn’t taken into account when calculating care fees.

These types of Trusts are normally used by married couples or civil partners to ensure the share of the home will ultimately pass to the children, but the spouses are protected and can carry on living in the home.

For example, a married couple want to leave a share of their house to their only child. They currently own the house as joint tenants. They sever the tenancy on the property, meaning they both own an equal 50% share. Then, they set up a PPT in their Wills to represent that if one died, their half of the property would be held in Trust for the benefit of their child, but the survivor can live in their share of the property for life (or a specified period of time).

Still got questions? Get in touch with our team to discuss Wills, Trusts or LPAs and how they can benefit you.

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What is an LPA?

Making a Lasting Power of Attorney (LPA) lets you take control of your future by allowing you to choose who makes decisions on your behalf if anything happens to you. You can either make a Health & Welfare LPA, or a Financial LPA.

What’s the difference between an EPA and LPA?

EPAs only cover financial affairs. LPAs are more secure – they let you appoint replacement attorneys and allow for more flexibility. They also receive stronger supervision and are safer – you can appoint people you trust to look after your affairs for you.

If you have an EPA in place, it’s worth considering reviewing your planning.

Still got questions? Get in touch with our team to discuss Wills, Trusts or LPAs and how they can benefit you.

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Other questions

What happens to my social accounts when I die?

With Facebook, you’ve got 3 choices.

  1. You can appoint a ‘legacy contact’ – you choose someone to look after your account when you pass away. They can memorialise the account, post a final status update, and update your profile and cover photos. You can also give them permission to download a copy of everything you’ve ever shared on Facebook. They can’t remove your posts/comments/photos/friends or read your private messages, though. You can request this by changing your preferences in your settings.
  2. You can have your account permanently deleted. Again, you can request this your settings.
  3. You can have your account memorialised. This is the default setting that Facebook uses if they become aware of your death and you haven’t given any other instructions. Your profile says ‘Remembering [your name]’ and your friends and family can still view all your posts. Again, you can set this as your preference in your settings.

Instagram – Your account will either be permanently deleted or memorialised. You can’t sort this out yourself – it has to be sorted by your loved ones after you’ve passed away. You might want to consider leaving instructions in your Will about what you want them to do. They won’t be able to access the account, but they will be able to contact Instagram to delete or memorialise it.

Twitter doesn’t allow you to memorialise your account. They only offer permanent removal of a deceased user’s account – and to do this, whoever gets in contact will have to provide information proving they’re authorised to do so. Twitter will need the deceased’s account name, their full name, the contactor’s relationship to the deceased, and the contactor’s full name and email address. They’ll also need a copy of the Executor’s ID and the deceased’s death certificate. It’s a lot of hassle.

YouTube are owned by Google, and Google have a similar system in place to Facebook when it comes to allowing you to plan for what happens to your various accounts on death. Through your settings in your Google account, you can appoint an ‘Inactive Account Manager’. This allows you to appoint a trusted person to be notified when your account has become inactive and give them access to it. When doing this you choose when your account is considered inactive. Google will try to contact you multiple times before passing any details on to your Inactive Account Manager. If you haven’t assigned an Inactive Account Manager, then your immediate family or Executors can work with Google to deal with the account. They might request that the account is permanently deleted, or ask for certain data from it. They can also request funds from a deceased user’s account, if the deceased had any money in their AdSense account (earned from advertising on YouTube).

Why choose Vital Documents?

Our friendly team of specialists are here to help you make the most of your assets. The benefits of using our service are:

  • You can be sure that your Will meets all the latest requirements thanks to our ongoing training
  • You’re fully covered, whatever happens, thanks to our indemnity insurance
  • Any issues you face will be handled fairly and consistently, as we adhere to the Will Writers code of practice and complaints procedure
  • You can be confident that we know what we’re talking about; our team have been put through stringent training to become members of The Society of Will Writers
  • If you change your mind, don’t worry. We offer a statutory 14 day cooling off period in accordance with Consumer Contract Regulations
  • You’re getting an estate planning specialist, not a legal ‘general practitioner’. We’re passionate about Wills and that’s all we do!

Still got questions? Get in touch with our team to discuss Wills, Trusts or LPAs and how they can benefit you.

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