Writing your will

Your guide to writing a will

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Although it’s an unpleasant reality to face, writing a will is something we all have to do to ensure our belongings end up in the right hands when we die

Family

What is a will?

Your will is a legal document that describes what should happen to your estate when you pass away. Your estate includes your money, property and possessions.

Do I need to write a will?

You aren’t required by law to write a will, but if you don’t your estate comes under the control of the law – and they’ll decide how to pass it on.

There are a number of benefits to writing a will, including:

  • Simplifying the process of handing over your estate and avoiding disputes
  • Appointing a legal guardian for your children and to secure their future
  • Making funeral requests
  • Choosing an executor for your estate – someone you trust to divvy it up
  • Planning your financial assets
  • Bequeathing money to charity
  • Avoiding inheritance tax

What happens if I don’t write a will?

If you don’t write a will, this is called dying ‘intestate’ – which means the law will be responsible for dividing your money, property and possessions. There are intestacy rules in place that help decide how your estate is split:

  1. Spouses and civil partners will inherit all of your personal belongings, as well as the first £250,000 of your estate and 50% of the remaining value. The other half is given to your children
  2. Spouses and civil partners inherit the entire estate and all belongings if you have no children
  3. If you have a partner but you aren’t married, they have no automatic right to your estate, even if you have children together or have cohabited for a long time
  4. If you have children and your partner or spouse is deceased then your estate is divided equally between your children
  5. If you don’t have a spouse, partner or children, your estate may be inherited by your parents, siblings, and nieces and nephews

When should I write my will?

If you have dependants such as a spouse or children, or if you have any particular plans for your estate, then it’s worth writing a will as soon as possible and keeping it up to date. It’s especially important to update your will when there is a major change in your circumstances – for example, getting married, having children or getting a divorce.

Can my children inherit from my estate if they’re under 18?

If your children are under 18 they won’t be able to inherit anything yet – anything left to them will be held in trust. However if you think 18 is still too young you can specify what age they’ll be allowed to inherit any capital – in which case the trustees decide what the funds can be used for.

This will be something to benefit the children, such as tuition fees.

What is inheritance tax and how does it work?

Inheritance tax is paid on your estate before the rest is divided between your beneficiaries, and it doesn’t have to be paid if:

  • Your estate is under £325,000 in value
  • Anything above the £325,000 threshold is left to your spouse or civil partner, a charitable organisation or a community amateur sports club
  • Your estate is under £475,000 if you’re leaving our home to your children or grandchildren (including adopted, foster or stepchildren)

Even if you don’t have to pay inheritance tax you still have to report it to HMRC.

You can add your unused threshold to your partner’s threshold when you die if you’re married or in a civil partnership. This means you and your partner could collectively leave behind up to £950,000 in your estate before your beneficiaries will pay inheritance tax.

How much inheritance tax will I pay?

If you do have to pay inheritance tax, the standard rate is 40% - however if you leave 10% or more of the net value to charity the rate falls to 36%.

Does inheritance tax apply to gifts?

Inheritance tax may also be applied to gifts you give while you’re alive, such as money, property and possessions, or a reduced cost sale, counts as a gift. A reduced-cost sale would refer to something you sell to your child, for example a house, for less than its actual worth – the difference in value is classed as a gift and is therefore taxed at the same inheritance tax rate.

However this only applies if the gifts are worth over £325,000 and were given in the seven final years before your death.

Any gifts you do give that you pay inheritance tax on will therefore be taxed at 40%, but if it’s been over three years the rate will reduce on a scale known as ‘taper relief’:

Years between when you gave the gift and when you died

Rate of inheritance tax to pay

Under 3

40%

3-4

32%

4-5

24%

5-6

16%

6-7

8%

Over 7

0%

What other gifts are exempt from inheritance tax?

You’ll get an annual exemption of £3,000 each tax year that won’t count towards the value of your estate, as well as:

  • Small gifts paid for out of your normal income
  • Gifts you give to your spouse or civil partner, so you can give them whatever you like – as long as they permanently live in the UK
  • Wedding or civil ceremony gifts worth up to £1,000 per person, or £2,500 for your grandchildren and great-grandchildren, or £5,000 for your children
  • Payments for another person’s living cost, if they’re an elderly relative or child under 18
  • Donations to charities and political parties

You can use multiple exemptions on one person, and any of your annual exemptions which you don’t use can be rolled over for one year.

How do I write a will?

Writing a will doesn’t have to be extremely complicated, as long as you include everything you need to and have witnesses in place. You can either write the will yourself or hire a professional to write it for you.

How do I write my own will?

If you’re writing your own will, you should avoid being ambiguous – keep it as simple as possible while still meeting the right criteria:

  • Outlining exactly how your estate should be divided
  • Stating that you made the will when you were able to make decisions independently, and that no one was putting pressure on you to make certain bequests
  • Signing and dating the document in the presence of two witnesses – who also have to sign the will in your presence. The witnesses can’t be people who will inherit from your estate

What else do I need to include in my will?

You should ensure your will is detailed and clear, and includes the following information if necessary:

  1. Your estate: Give the exact details and value of your estate, including money, properties and possessions
  2. Beneficiaries: You should outline who you want to inherit from your estate clearly and precisely, using full names rather than their relationship to you – for example, give your spouse’s full name rather than saying ‘my spouse’
  3. Executors: You should also clearly state who the executor of your will is. The executor is the person who is responsible for dividing your estate according to your will upon your death
  4. Guardians: If you have any children under 18 you should state who you want to be their legal guardian
  5. Gifts: If you have any specific gifts you want to leave to particular beneficiaries you should say so – these are called ‘legacies’

Who else can write my will?

You can also have your will written by either a solicitor or a will-writing service, which might be more appropriate if you don’t feel confident writing your own will, if your estate or circumstances are complicated, or if you simply want to make sure you do a thorough job. For example, this might be necessary for:

  • Businesses
  • Shared properties (excluding spouses and civil partners)
  • Multiple marriages, divorces and step-children – in short, if there are other people who might be entitled to your estate
  • Properties or permanent homes outside the UK
  • Beneficiaries that can’t care for themselves – for example, if they’re medically incapacitated

Solicitors offer an added benefit of professional legal expertise, and they’re subject to certain regulations that professional will-writers may not be. However the cost and standard of work varies depending on the firm or solicitor you choose – try using the Law Society’s Find a Solicitor service to find yours.

On the other hand, some will-writers are part of recognised trade organisations such as the Institute of Professional Will Writers or the Society of Will Writers. They have a code of practice to comply with, and usually have indemnity insurance in place as well as qualifications and experience you can view online.

How do I make sure my will is legal and valid?

In order for your will to be valid:

1.       You need to be 18 or over

2.       You must be voluntarily writing the will

3.       You need to be ‘of sound mind’

4.       The will needs to be in writing

5.       Two witnesses, both also over 18, need to be present when you sign it

6.       Both witnesses need to sign it in your presence

7.       Your witnesses or their spouses cannot be beneficiaries of your will

The safest way to ensure your will is clear, precise and legally valid is to consult a solicitor.

How much does it cost to write a will?

Depending on how simple or complicated your will is, the cost can range from around £80 to several hundred pounds – and a will that includes trusts or other specialised features will be more expensive.

Even if you write it yourself, it’s always worth having a pair of professional eyes to at least go over your will as it’s easy to make a small mistake that could end up invalidating your instructions.

How do I keep my will safe?

Keeping your will safe and secure once you’ve completed it is vital, so your executor can find it when they need to. You’ll generally be able to store it:

  1. At home: If you keep your will at home you’ll save the cost of keeping it at any of the other options below – but be sure to keep it secure, somewhere it won’t get damaged, lost or stolen. You could keep it in a locked safe, just remember to tell your executor how to access it
  2. With a solicitor: If you’ve hired a solicitor to write or review your will, they might offer to store it for no extra charge. However if you ask a solicitor to store it when they haven’t worked on the will, they might charge a fee to do so – usually either a one-off fee or an annual payment
  3. With your will-writer: If you’ve used a professional will-writer they might also offer storage, but they often charge a fee whether or not they worked on the will
  4. With a will storage company: Will storage companies also charge fees for storage, but they’ll look after it in the way your solicitor would. However they might charge extra fees if you want to access and change your documents
  5. With a bank: You could also keep your will in a bank, but never in a safe deposit box – this could mean your executor can’t access the safe deposit box or obtain probate for the will

What does probate mean?

Probate is what is granted to an executor named in a will, giving them authority to sort out how the estate is divided between the beneficiaries. The executor needs to apply for grant of probate upon the death of the testator (the person making the will), which involves submitting an application that usually takes four to eight weeks to process.

They can then carry out the normal steps as an executor, such as:

  1. Gathering all assets, which usually involves contacting banks. building societies and government departments such as their local council and HMRC
  2. Settling any outstanding accounts and debts
  3. Paying the required inheritance tax
  4. Distributing the estate according to the will

Can I change my will?

You’ll be able to make changes to your existing will using an official alteration known as a ‘codicil’. This has to be made under the same conditions as writing the will in the first place, so:

  • You need to be making the change voluntarily
  • You must be of sound mind
  • You must be making the change in writing
  • You must have the codicil signed by two witnesses who are also present while you sign it

Codicils can make the will more complicated, especially if you make more than one, and this can lead to disputes when the time comes to divide your estate.

Can I write a new will?

Instead of using codicils to make changes to an existing will, it can often be simpler and easier to just write a new will instead – especially if you’re making more than just small changes. All you’ll have to do is follow the steps outlined above to make the new will – but in this new version you have to clearly revoke your previous will(s) or codicil(s).

You should also destroy any previous versions of your will and associated codicils to ensure there are no old documents mistakenly being used.

It’s worth noting that if you get married, remarried or enter into a civil partnership, any previously existing wills you have will be cancelled. If you get divorced this won’t cancel your will, but any gifts you gave to your divorced spouse will no longer apply.

What if I’m not able to sign my will?

If you aren’t able sign your will, you can ask someone to sign it on your behalf so long as you’re present and you give direction that they can sign it. This means you must have the mental capacity to make the will and ensure it’s valid – even if you’re seriously ill or have a condition such as dementia.

You may need a medical practitioner to state that you understand the contents of the will being made for you – your solicitor should make sure of this, and they should include a clause within the will to say so.

How does life insurance affect my will?

Your life insurance pay-out forms part of your estate, so it’ll be given to the beneficiaries you name in your policy but it may also be subject to inheritance tax.

However if you write your life insurance policy in trust, the pay-out can be awarded directly to the beneficiary you name – meaning the sum won’t be added to your estate. This could mean you stay below the inheritance tax threshold, depending on the size of the pay-out and the value of your estate.

The money won’t need to go through probate, so the money is likely to get to the beneficiaries faster than it would through a will. You’ll also be able to control how the money will be paid out – meaning if you have any children you can appoint a trustee to oversee the payments.

How do existing debts affect my will?

Any existing debts you have must be cleared using money in your estate before it’s divided up between your beneficiaries.

Living wills for becoming ill or incapacitated

Living wills, also known as advanced decisions, are a document you can have drawn up for if you become unable to communicate or make your own decisions. It lets you pre-emptively refuse medical treatment, even if you would die as a result.

It must:

  • Not be used to request certain treatment
  • Not be used to ask for termination of life
  • Be clear under what circumstances you would refuse the specified treatment

It’s a good idea to have it down in writing with copies shared to your family, as well as your GP and medical team so they’re aware of the situation. It must include the statement ‘even if life is at risk as a result’.

Tips for making your will

When you go through the process of making your will, it can help to remember the following:

  • Inform those closest to you of roughly what to expect so there are no surprises on what will already be a difficult day
  • Make sure everything you own is covered, so you can avoid residual legacy or partial intestacies
  • Provide clear wording and information, as well as correct spelling, in your instructions so people can’t dispute the will
  • Plan your finances and ensure any life insurance you have is written into trust to avoid paying unnecessary inheritance tax

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