Most adults believe making a Will is a good idea and is something they should do. For a variety of reasons over 50% of UK adults never actually make a Will. Of those that do make Wills as much as 50% are either invalid or not fit for purpose. Getting through the process effectively has a number of potential pitfalls.
Here are 21 pointers to help you navigate the problems and pitfalls:
1. Make a Will. Without one you will die intestate and the Law decides who gets your assets and in what proportions.
2. Observe proper signing procedure. The most common reason for declaring a Will invalid is incorrect signing procedure (attestation). Two witnesses must see the testator sign the Will and sign a declaration stating just that.
3. Witnesses should not be beneficiaries in the Will. If they are, the Will is still valid but any inheritance in the Will is struck out!
4. Appoint at least two Executors. By all means appoint your spouse or indeed anyone but have a second Executor or a reserve Executor in case the first choice is unable or unwilling to act.
5. Choose Executors wisely. Executors will be responsible for administering your Estate. They need to be trustworthy, willing and able.
6. Consider appointing a professional Executor. If you have complex affairs or cannot choose the ‘right’ member of your family it might be a good idea to have a professional Executor. there will be a cost to this service but it could prove cost effective and save family arguments.
7. Know the value of your Estate. Many people have life insurance and death in service benefits that swell the value of their Estate to a level where Inheritance Tax issues need to be addressed.
8. Ensure your children will inherit. If a parent remarries or buys property jointly with a new spouse or partner that property is owned by the new partner and will not fall into the parent’s Estate for inheritance purposes. Own property as tenants-in-common and leave it to the children subject to the life interest of the spouse or partner.
9. Appoint Guardians. If you have children under 18 years old appoint Guardians in your Will. If you don’t and the worst happens your minor children will be put in the care of Social Services until a Court decides who gets custody.
10. Use special Discretionary Trusts for disabled children. The right type of Discretionary Trust will provide the optimum support for your disabled child without reducing state benefit entitlements.
11. Common Law Marriage is a myth. There is no such thing in English law, so if your partner dies you will inherit nothing without such provisions in a Will.
12. Marriage can invalidate your Will. Unless your Will is made in contemplation of marriage your Will be invalidated by marriage. You will need a new Will!
13. Divorce does not invalidate your Will. However your ex-spouse is treated as if s/he has died. The effect may be that you would be intestate or partially intestate. You should get a new Will.
14. Plan to avoid Care Home Fees. With careful lifetime planning, ensuring jointly owned property is as tenants-in-common and suitable Will trusts the asset draining costs of Care Home Fees can be avoided or mitigated.
15. Be careful if you are leaving someone out of your Will. Your wishes may be subject to challenge in the courts. If you do not want a child or other dependent to inherit give reasons in a ‘Letter of Wishes’ to be kept with your Will. This may be taken into account in any proceedings and will show that you haven’t simply overlooked that person.
16. Make a Will in any for any country that you own property in. This should help speed up and simplify probate in that country. N.B. there are exceptions, where making a local Will would prove disadvantageous or worse (e.g. the United Arab Emirates which might invoke Probate under Sharia Law).
17. Business and Agricultural Relief. Interests in a business, farm or shares in qualifying unlisted companies (held for more than 2 years) and let farmland held for more than 7 years qualifies for 100% Inheritance Tax relief. Assets used by a qualifying business or company, or a controlling holding in a listed company will qualify for 50% relief.
18. Never alter or tamper with your Will. Any damage or alterations may invalidate your Will.
19. Don’t gamble on a D.I.Y. Will. If you use a professional to draft your Will who is trained, qualified and has Professional Indemnity insurance you can achieve the peace of mind you want and need. If you go down the D.I.Y. route and then make a mistake you will have saved some money but to what end? There is no comeback and your surviving loved ones will not be thinking about the few pounds you saved.
20. Keep your Will safe. If you die in a fire your will may go up in flames too. Making a Will is stage one – it needs to be available when it is needed. Consider taking advantage of secure storage options to ensure it will not be damaged or destroyed.
21. Let your Executors and beneficiaries know where to find the Will. This can be achieved through secure storage with storage certificates provided for the Executors. There are also internet registration options which may prove particularly useful with larger families who have spread to far off places.