10 steps to drafting a Will
1. When is the right time to draw up a Will?
Essentially every homeowner, asset holder or parent needs a Will, so it must be done as soon as possible. To draft a Will you must be aged over 18 years (there are some exceptions to this age rule).
2. Why is having a Will important?
A Will is the most important document that you will make. That is because a Will incorporates our wishes about whom we wish to benefit, how we wish to benefit them and who has the responsibility of dealing with our assets after our death. It is much better to have made an informed decision about your estate then to have the Intestacy Rules govern how your estate will be distributed and by whom because you have not made a Will.
A Will can also be a very useful vehicle for:
- inheritance tax planning
- protecting assets for vulnerable adults or children (by means of a trust)
- protecting assets for the purposes of care funding (by means of a trust)
- providing for guardians
3. What main assets can be covered?
The assets that you can leave in your Will may be property, money, bank accounts, investments and shares; essentially any asset that you own or of which you share ownership, including your “digital assets”. A Will can also make provision for items that have sentimental value i.e. jewellery, paintings and/or furniture (known as “personal chattels”).
If you have young children then your Will should also make provision for the appointment of guardians.
4. What common mistakes do people make when drafting a Will?
Common mistakes might include:
- not making adequate provision for someone
- making provision that causes conflict between the beneficiaries after you have died
- not effectively appointing executors
- not maximising the inheritance tax reliefs
5. How regularly should it be reviewed?
Ideally a Will should be reviewed if your circumstances have changed but it is recommended that a minimum is every 4 or 5 years.
6. Can you draft a Will without a solicitor?
You do not need to use a solicitor to make a Will; in fact; there are plenty of will making kits available. However, if your circumstances are a little complicated be that due to a second marriage, vulnerable children, family estrangement, discordant issues with the family or assets held abroad then it is advisable to take advice from a solicitor so that you can make an informed decision about the provisions to be incorporated in the Will to ensure it is right for you and your circumstances.
7. How should you choose an executor?
An executor does not necessarily need to be a family member, but it should be someone who has your complete trust. It can be someone who is benefitting in your Will. However, the individual/individuals should be happy to take on the role and likely to be able to cope with the role when you die. You need to be satisfied that the individuals you choose will carry out that role appropriately to ensure that the wishes in your Will are adhered to.
8. Do you need a solicitor with specialist experience?
You should see a solicitor who is experienced in drafting wills and ideally a member of STEP (the Society of Trust and Estate Practitioners) – STEP is a global professional association for practitioners who specialise in family inheritance and succession planning. You can also locate solicitors with the appropriate skills on the Law Society website.
9. Is it a legal requirement to inform your family about your Will?
A Will is a private document so it is entirely up to you whether or not you tell your family that you have drafted one or its terms. However, to ensure that there is no confusion on your death it is advisable to let your family know that you have made a Will and where the original document is held.
10. Once a Will is in place, what happens after your death?
After your death normally a member of your family or an appointed Executor will register your death with the Registrar of births, deaths and marriages. The funeral will need to be arranged (normally banks will permit the funeral invoice to be paid from any monies held in an account of the deceased). The Executors then need to ascertain what assets you held when you died, their value, deal with your income/pensions and any liabilities you may have. The Executors will probably need to apply for a Grant of Probate and then ensure that your liabilities are paid and your assets are distributed in accordance with the terms of your Will.
If you have any questions regarding making a Will, please contact Elizabeth Power.