A will is one of the most important legal documents you will ever produce. Writing a will is the only way to ensure that your wishes are carried out and your estate is divided in the way that you choose.
Making a will is about protecting your:
Why go to all the effort of writing a will only to risk it getting lost between now and when you pass away. In a worst-case scenario, the will might be lost leaving your executors unable to find it and forced to rely on an earlier will or assume you had no will at all. Talk to us about professional will storage and make sure that your last will and testament is safely protected for when the time comes.
There is more to drafting a will than just…well, writing the will! At Nene Legal we can advise you on what planning is best to include in your will to make sure that your wishes are met. This advice ranges from including the best type of trust in your will to protect your assets for your family, or to make the most of the allowances available to you and minimise the amount of inheritance tax you pay.
We can also advise on planning that can be carried out in lifetime, such as severing the tenancy on your property to give you more flexibility, or putting Lasting Power of Attorney in place to ensure your best interests are looked after should you lose capacity.
We can store your completed will securely, if you would like us to. Contact us for more details.
Before you make a will, it is worthwhile considering who you would like to include, or possibly exclude, in your will.
There may be particular members of your family, friends, pets and charities that you would like to leave some, or all of your estate to.
You will also need to consider who is going to be the executor of your will. The executor of your will is someone who will take your will and ensure that your wishes are actioned correctly.
Often, people will ask family, friends, parents or children to act as the executor of their will. However, if they are not comfortable with this or if the will is complex, you could nominate an impartial professional executor.
If you were to die without having a valid will in place, you are almost gambling that your final wishes are going to the correct place.
In this situation, your estate will be distributed under the rules of intestacy. The rules of intestacy are a predefined set of rules that govern how your estate will be shared out.
For example, you could be in a relationship but you are not married or in a civil partnership. If your partner were to pass away, you can’t inherit under the rules of intestacy.
In this case, any children of the person who passed away would inherit the estate.
If there are no surviving relatives who can inherit under the rules of intestacy, the estate passes to the Crown.
We aim to make writing a Will as simple and stress-free a process as possible for all of our clients. During our meeting the aim is to identify your needs and discuss what the best options for you are. To help us do this there are a few things that we need from you, even if it’s just sitting down before our first appointment and having a good think about who you want to perform certain roles in your Will.
Let’s take a look at what pre-appointment information we need from you to make writing your Will as straightforward for you as can be.
Choosing Executors and Trustees
Have a think about would you would like to name as your executors and trustees.
Executors are people who will administer your estate. They will pay any debts, taxes and other expenses before distributing your estate to your beneficiaries, the people you want to inherit.
Trustees will manage any trust created by your Will, the most common being managing assets for children under 18. Executors and Trustees are commonly, but not necessarily, the same people.
Common choices are your spouse or partner, adult children, other family members, friends or even a professional. Whoever you name should be someone that you trust, are comfortable with knowing your finances and that you are confident has the ability to manage the finances involved.
If you have children under 18 years, or plan to have children in the near future, you should consider who you would like to name as guardians in your Will. If you did not name anyone, it would be down to the courts to decide.
Common people you could consider are your parents, siblings or close friends. Whoever you name, you should always ask them before naming them in your Will so if you can talk to them beforehand to confirm that they’d be happy to take on this role that’s great!
There are a few things that you should consider before appointing a guardian:
Before our meeting, you should think about what assets you own and roughly how much they are worth. For example, think about the value of your home, any cash in the bank, investments, life policies or pensions. You should also have an idea of your debts, such as a mortgage or any loans that you have.
There are a number of different types of gifts that you could make under your will. For example, you can make money gifts, gifts of personal items such as jewellery and gifts of property. Finally, there is the gift of all that is left over known as your ‘Residuary Estate’. This is likely to be the bulk of your estate.
You should consider if there any special gifts that you wish to make and who should inherit what is left over. Don’t worry if you’re not too sure at this point, as during our meeting we may find ourselves discussing more complex options like trusts to protect your assets.
Do you have any special wishes for your funeral? You may wish to include basic funeral wishes in your will. It should be noted however that these will not be legally binding on your executors to carry out. We can also discuss pre-paid funeral plans and their benefits.
Have a think about what aims you want to achieve with your will. Your will can achieve more than just simply gifting your estate. There may be Inheritance Tax benefits to be gained by your Will or you might be more interested in protecting your estate so your spouse or children are provided for in a way most suitable to their needs.
Before your meeting, you should have the following documents prepared and ready to bring with you:
We accept all regular forms of ID, including valid non-EU passports, valid EU passports, UK photo driving licenses, and national identity cards.
Guardians are people who you appoint to look after any of your children who are under 18. You can appoint guardians in your will and it is highly recommended that you do so if you have children under 18. When appointing guardians, you should think about not just who the best people to care for your children are, but also how much disruption to your children’s daily lives can be avoided. Can they be kept close to their friends and continue going to the same school? Do your chosen guardians share similar values as you when it comes to parenting?
Money Gifts…You can include gifts of money in your will, this may to be to friends, family members or to charities that you have supported.
Specific Gifts…You can make gifts of certain things that may be important to you such as jewellery, a personal memento. You can also gift things like your bank accounts or investments, or properties.
Gift of Residue…All wills will contain a gift of your residue or ‘residuary estate’. This is everything that is left in your estate after your estate has paid for your funeral, debts, taxes and other expenses and after all other gifts have been made.
You may choose to leave your estate to your children. If you pass away while they’re under 18 they won’t be able to receive any of your assets until they turn 18. Until this point your estate will be held back for them on what is called a ‘trust’. This doesn’t have to mean that they can’t benefit from your estate at all until then though. The Wills we draft include powers for your executors/trustees to use the trust to help maintain your children and pay for things related to their education or other benefit.
This is part of the reason that it’s so important you carefully choose your executors/trustees as these will be the people responsible for managing this trust for your children.
When writing a Will it’s important to think about not just where you want your assets to go, but whether you will have to pay an Inheritance Tax (IHT). Wanting to avoid paying IHT will have an impact on what kind of planning we can include in your Will. Here we’ll explain the basics of IHT and how a Will can help you.
IHT is a tax that may be payable on your estate. Since there are many different reliefs and exemptions available not everyone will pay it though. It’s often described as a ‘voluntary tax’. In fact, in the year 2018/19 only 3% of estates paid any IHT at all! Receiving professional advice and having a carefully drafted Will in place are therefore essential to making the most use of whatever exemptions are available to you to reduce the IHT bill you pay.
IHT is charged on the value of your assets on your death. There are also some circumstances where any gifts you have made in the 7 years before your death will be included too. IHT is only charged if your estate is worth more than your tax-free allowances. These are known as the ‘nil rate band’ (NRB), and a special ‘residence nil rate band’ (RNRB) that is available if you own property. If your estate is larger than all of the tax-free allowances that are available you will have to pay IHT at 40% on everything over the allowances.
Currently every individual has an NRB of £325,000. So, they can gift at least that amount on death without having to pay any IHT. If you are married or in a civil partnership then you might be able to benefit from double this allowance. This is because this NRB can be transferred between spouses, so if your spouse dies leaving their estate to you, you will be able to pass on £650,000 free of IHT when you pass away.
In April 2017 an additional allowance was introduced by the Government, known as the RNRB. Like the NRB every individual may be able to use this allowance. We can only say ‘may’ because unlike the NRB you have to meet some extra requirements to benefit from it as it can only be used against the value of a residential property that you are passing on to your children, grandchildren or other ‘direct descendants’.
At the moment the RNRB is valued at £150,000, but from 6 April 2020 this will increase to £175,000 per person. This is on top of the ordinary NRB you already have. This allowance is also transferable between spouses and civil partners. This means that by April 2020 some couples will be able to pass on up to £1m totally free of IHT!
This RNRB isn’t available to everyone, which is why it’s so important you get professional advice. Your Estate Planner at Nene Legal will be more than happy to advise you on whether you can qualify for this allowance and make sure your Will is drafted in a way that makes sure you and your family get the most benefit out of it.
If you are married or in a civil partnership you can benefit from a total exemption from IHT. Gifts to your spouse are completely IHT free so you may not need to worry about IHT at all when the first of you passes away no matter what size the estate is. At Nene Legal we can help you put planning in place that is IHT friendly and uses this spousal exemption while also protecting your assets for your spouse.
Are you a keen supporter of a charity and you think you’d like to leave a gift to them in your Will? If so then IHT is a great incentive for doing this as gifts to charity also benefit from a total exemption from IHT.
If you’re really eager to support a charity when you pass away there’s another IHT relief available to you. If you plan to leave at least 10% of your net estate (the value of your estate after you’ve paid any debts) then not only will that gift to charity be free from IHT, but if there is still tax left to pay on your estate you will only pay 36% instead of 40%.
If you’re a business or a farm owner there is also another type of relief that you might be entitled to. ‘Business Property Relief’ or ‘Agricultural Property Relief’. This may allow you to pass on your business assets either free of IHT or at a 50% reduced rate. Ask us how we can help with this.
If there is any IHT to pay it must be paid by your executors out of the assets available in your estate. Your executors must pay this to HMRC within 6 months of your death.
If you are like many people your main asset may be your home. Rest assured that HMRC recognise that people like to keep the home within the family, and also that it may be difficult to sell a property within 6 months, so they make an exception for this. Any IHT due on your home can be paid in 10 annual installments instead.
As well as making sure you have a well drafted Will that takes IHT planning into account and makes the best use out of any exemptions that are available, there are lots of things you can do in your lifetime to reduce your potential bill.
One of the most important things we’ll ask you when discussing your Will is ‘who do you want to be your executor?’. This is an important decision as the executor is the person or people who you choose to stand in your shoes once you’ve passed away and who will actually put your Will into action.
Executors have a lot of legal responsiblilties and can find themselves personally liable for anything they do wrong. For this reason it’s important that you think carefully over who you would trust to perform such an important role, or even whether you’d like to use a professional.
The first step for an executor will be locating your Will. After all, without this they won’t know how they need to divide your assets! We’d recommend that once you’ve signed your Will you let your executors know where your Will is stored – whether this is at home or in a professional storage facility. This will prevent any unnecessary delays in getting things started.
Their next step will be to apply for a grant of probate if it’s necessary. This grant confirms that your executors have the legal authority to deal with your estate and might be necessary for them to gain access to some of your assets. Probate may not be necessary if you only have a small estate or your assets are all owned jointly with someone else. See our article ‘What is probate?’ for more information about when probate may and may not be required.
Your executors are then responsible for dealing with your estate. This can include collecting information about all of your assets, closing bank accounts, selling property, paying off any debts that you owed like your mortgage, and protecting your assets until it’s time to distribute.
Executors also have the task of dealing with HMRC. They will need to work out the value of the estate, but formal valuations aren’t always necessary if the estate is below £325,000. Whether your estate is large enough that Inheritance Tax (IHT) has to be paid or not the executors will need to complete a set of forms for HMRC to either:
Eventually this all leads to the executors making sure that the instructions you’ve left in your Will are carried out and your estate is passed on to your heirs.It’s not officially their duty, but your executor may also be the person to register your death and obtain death certificates. Arranging the funeral is normally a job that the family are tasked with, but often the executor will be a family member of yours so they’ll carry out this role too.
You need to choose at least one executor and you can have as many as four. You can appoint your family or friends or even a professional. It’s fine for a beneficiary of your Will to also act as your executor, and in fact this is common. Many couples choose to leave their estates to each other and also name each other as executors.
If appointing family or friends…. Make sure that whoever you appoint is at least 18 years old and is preferably someone who is likely to survive you. They should also be someone who you trust and who you feel is responsible enough to take on this task. We recommend appointing at least two executors as there are some situations where two executors are needed. If appointing multiple executors make sure they’re likely to get along as they will need to make all decisions together.
If appointing a professional… If you feel your estate is quite complicated, there are no friends or family you think are suitable to act, or maybe you see being an executor as a burden that you don’t want to put upon your family, you can consider a professional executor instead. Professional executors come with a cost to your estate that will be paid after you’ve passed away. This cost could be an hourly rate or it could be a fee that is based on a percentage of the value of your estate. Make sure you’ve considered their fees and you’re happy with them before appointing a professional in your Will.
A Will might be the most important document that you ever write. A Will is a legally binding document that you write to make sure that what you own passes on to the people who you most want to benefit after you’re gone. It’s also a way of appointing people you know and trust to take care of your minor children should the need arise, as well as protecting assets for your loved ones. To really understand just why a Will is so important, we first need to look at what happens if you don’t have one.
There’s no ‘one size fits all’ approach to a Will, so what benefit a Will can have for you is going to depend on your own personal circumstances. We’ve looked at a few common situations below.
If you are married…
If you are married, there are multiple different reasons why you should consider making a Will.
Married couples and civil partners should not assume that their spouse will receive everything. As we saw above, under the intestacy children can have a right to part of the estate if your assets are worth over £270,000.
You and your spouse may have children from previous relationships, stepchildren that you have both treated as your own children for many years. Unfortunately, stepchildren do not inherit under the intestacy rules at all. If your whole estate passes to your spouse on intestacy, your children (your spouse’s stepchildren) would not inherit at all when your spouse dies, including from assets your spouse inherited from you. Writing a Will ensures that all children from both sides of the family can get their share. We can even discuss trust options that go that extra step in protecting your assets and making sure they’re passed onto the people who you want to benefit.
If you are not married…
It is a common misunderstanding that if you live with someone for a certain number of years, they become your ‘common law’ husband or wife. This is not correct. An unmarried partner does not have the same legal rights as a spouse does, and they can’t inherit under intestacy. Without a Will in place, your partner won’t receive anything from your estate at all unless they go to Court after you have passed away.
Unmarried couples do not receive the same Inheritance Tax (IHT) benefits are married couples and there may be benefits to including certain trusts in your will if you are unmarried. Your qualified Estate Planner at Nene Legal will be able to advise you more on this.
If you are a parent…
If you have children under the age of 18 you’ve probably already given some thought to who you would like to take care of your children if anything should happen to you and your partner. You can name guardians to look after your children in your Will. These will be the people who will have legal responsibility for raising your children if you die before they turn 18.
If no guardians have been named and both parents have died, the courts will decide who will look after your children and they may choose someone who you would not have wanted. Making a Will ensures that the people you want to look after your children can. It is also an opportunity to make your wishes known about how you would like your children to be raised. We can also discuss how your Will can provide for your children so you don’t need to worry about any financial burden on your guardians.
If you have pets…
In your Will you can decide who will look after your pets after you have died. You may have family members or friends who would be happy to do this for you. If not, there are a number of different charities that could rehome your pets for you and this can be free of charge to you now and to your estate after you’ve died.
If you’re worried about Inheritance Tax…
Having a professionally drafted will and receiving advise from your advisor at Nene Legal can ensure that your estate is distributed in the most tax friendly manner. This may be drafting your will to ensure that any available reliefs and exemptions are applied efficiently or in some cases there might be trusts that could assist you. See our guide on Inheritance Tax for more details.
You may wish for your assets to be protected. This may be to protect your half of the family home if your spouse remarries or goes into care, or alternatively it may be to protect your children from wasting their inheritance. Maybe you want to provide for a disabled child and want to know what the best way to do this is?
Depending on your circumstances, it may be advisable to contain a trust in your Will to protect your estate. There are lots of options available to cater to your wishes and we’ll be happy to discuss them all with you so you can rest assured that your Will is taking care of your loved ones in the best way possible.