Last Will And Testament For UK Nationals Living at Home or Abroad
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              Why I Should make a Last Will and Testament?
                Don't Delay in Making that Last Will. The Consequences?

Where the deceased has not left a Will your family would have to choose a representative for you to approach probate, to obtain, a grant of letters of administration, ensuring someone is appointed as the administrator for your estate. Your estate is then distributed under the rigid rules governing the Law Of Intestacy. This law, laid down in the Administration of Estates Act, applies irrespective of the amount of wealth a person owns at death.

Where the deceased has not left a Will the law does not allow any opportunity to consider any wishes the deceased may have had, even if those wishes appeared obvious and written down other than by a properly executed Will. In fact a Will written, but not executed correctly, could very well constitute that the deceased had changed his mind as to whom his beneficiaries should be.

I don’t need a Will I have very little to leave!

A man died who, after deducting all his debts and liabilities, had only a few thousand pounds and no living relatives. His best friend knew that the man was an ardent supporter of childrens charities and had been told by his friend many times that “when he died he wanted all his cash to be given to that particular childrens charity”. The man duly passed this information on to probate, who had no option under the law, but to give the mans few thousand pounds directly to the Crown.

Where the deceased has left a Will your chosen executor is appointed and applies for a grant of probate this frees your estate for distribution to your family in the exact way that you have decided in your Will.

Which do you think would be the simplest and quickest? Hmm, should I leave a Will or rely on intestacy?

Any person who dies without executing (making) a valid Last Will is known as dying INTESTATE. In that event the deceased's estate is distributed according to the Law on Intestacy. By simply making a Last Will you would avoid any problems that arise from intestacy.
It is important to be aware that the spouse of a deceased person who died intestate, DOES NOT automatically inherit the whole of the spouse estate if the total value of the free estate passing on the death is of substantial value. The Law prescribes what a surviving spouse can automatically receive, this is known as the statutory legacy, and the amount is dependent on whether or not the deceased was also survived by issue (children) and certain other relatives, again in order of strict priority.  
All of the above can take considerable time to sort out without leaving a will, and are subjected to charges.
 Can a Husband and Wife Make a Joint Last Will  and Testament?
No it is not possible to have a joint Will they must be individual Wills.

However “Mirror Wills” are quite common. A mirror Will is when a spouse or partner make almost identical Wills, or even identical Wills, leaving for example, everything to each other respectively should one partner perish and if both perish together then direct to children. If they have no children then to a named beneficiary's. This is where major differences often occur say, for example, the husband could leaves his possessions and estate to his siblings and the wife leaves her possessions and estate to her siblings.

Marriage

Marriages revoke your will, except where the Will is written specifically in anticipation of a specific forthcoming marriage.

Anyone who’s last Will was made before his or her present marriage needs to make a new will at once.

Divorce
Divorce change but do not revoke your will. They do however exclude the former spouse as a beneficiary, but not as executor, if the former spouse was an executor you may have problems. Divorce is always an occasion for making a new Will.
Remarriage

Testators often feel anxious about this problem wanting to ensure adequate provision for the spouse but still feeling that if they died prematurely, and the survivor remarried, possibly having additional children, then his children would be deprived of what he would consider their lawful inheritance. This problem is often one of human relationships and is incapable of being satisfactorily resolved by legal formula.

A provision in a Will relating to remarriage would probably be ineffective as society does not prohibit cohabitation so any such clause could prove difficult to enforce. The solution available is a clause involving the use of a life interest.

Mirror Wills “v” Mutual Wills
Spouses and or partners who chose to make identical wills should be aware of the difference between mirror and mutual Wills. A mutual Will is written in such a way, with stipulations included within it, in which both testators agree that the survivor's Last Will is to remain unchanged after the death of the first to die. A mirror Will has no such stipulation or clause within it.
Mutual Wills
Some people become interested in the possibility of drawing up mutual Wills with their partner or spouse. These Wills are identical and the effect of executing such a Will is that after the death of the first to die, the Will of the survivor cannot be revoked. However, we do not recommend that you seek to execute mutual Wills, as there are many pitfalls involved. In particular, it is open to either party to revoke the Will whilst both parties are still alive without informing the other party. The effect of this would be to remove the mutuality of the Wills. There is no such agreement with mirror Wills, with no such stipulations or clause included within it.
Mirror Wills 
A mirror Will is when a spouse or partner make almost identical Wills, or even identical Wills, leaving for example, everything to each other respectively should one partner perish and if both perish together then direct to children. If they have no children then to a named beneficiary's.
A Will that leaves everything to the testators spouse
A Will that leaves everything to the testators spouse will ensure that the surviving spouse is provided for as far as possible. However, the testator has no control over the ultimate destination of the property and must trust the surviving spouse to make appropriate dispositions should he or she die first, especially if they have children. There is a danger of accidental disinheritance of children where a surviving souse remarries without realising that marriage automatically revokes an earlier Last Will  (except in very limited circumstances). For example, if the surviving spouse has made a Will providing for the children of the first marriage, but then remarries, the Will in favour of her children would fail, benefiting the new spouse who would inherit under the Law of Intestacy, therefore, accidentally disinheriting the children of the first marriage.
Giving a spouse a life interest

Giving a spouse a life interest, rather that an inheritance, could prove offensive to a spouse and even the testator themselves.  Also the estate supporting the Life interest, if it is to provide an equal or even satisfactory income, would need to be substantial. This solution invariably creates another problem that could potentially cause a large Inheritance tax liability. The creation of a life interest clause would prevent any meaningful method of inheritance tax mitigation by way of Will.

What can I say in my last Will?

Making a Last Will is as much about your wishes as your wealth. It means that you take the decisions about which of your possessions goes to whom, whether they are financial or simply sentimentally valued possessions.

When you make a Will you are able to say exactly how you want your affairs to be dealt with after your death.

You can specify funeral arrangements; it will save one decision later on by the family, who will have quite enough to think about. You can advise Where the service (if any) should be held, if it should be religious or not or if any sermon or hymn special to you should be used.

Your Last Will should be as personal to you as possible. Wills are not necessarily long complex documents, after all, there should be no room in it for ambiguity. It should be made simply and understandable using well-tried clauses. A professional or experienced Will writer should guide you.

What should this man have said in his Will?                              

A man died who, after deducting all his debts and liabilities, had only a few thousand pounds and no living relatives. His best friend knew that the man was an ardent supporter of childrens charities and had been told by his friend many times that “when he died he wanted all his cash to be given to that particular childrens charity”. The man duly passed this information on to probate, who had no option under the law, but to give the mans few thousand pounds directly to the Crown.

Is Inheritance Tax likely to affect me or my family            

Inheritance Tax may be payable on your estate when you die.

If in any doubt you should seek professional advice.  Please advise us if this is the case when you submit instructions for a Will.

No Inheritance Tax is paid on any assets passing between husband and wife.

                 How much and when is IHT payable?

This depends on each individual's estate and how it was made up at the date of death. Each individual has a Nil Rate Band threshold. For deaths on or after 6 April 2007 (start of the tax year) the Nil Rate Band is £300,000, rising to £312,000 in 2008 and £325,000 by 2009. If no planning has been put in place prior to death then the balance of the estate over and above the Nil Rate Band is chargeable to 40% Inheritance Tax.

You have six months from the end of the month in which death occurred to pay the tax. Payments made can be from any savings or investments that may be available within the estate. If the main assets are (as is typical) made up from property and savings or investments and are not available then you may be able to pay the tax owed in instalments, interest may be charged on payment in instalments.

No Inheritance Tax is payable provided that the total value of your estate is less than the inheritance tax threshold.

Inheritance Tax is paid at 40% on any part of your estate above the inheritance tax threshold.

  When valuing your estate you should take into account the value of all of your assets, including your property, savings, stocks, shares, premium bonds, Building Society accounts, Bank accounts, antiques, in fact everything that you personally own.

If you are in doubt as to your financial position, whether Inheritance Tax would be due and it's effect on your estate, you should seek professional advice.  Please advise us if this is the case when you submit instructions for a Will.

 

Am I able to appoint Guardians for my Infant (children)                       

  Parents are most concerned about the possibility of their both being killed in a common disaster leaving minor children surviving them.

For most married couples or cohabiters the overriding requirement is to make provision for the survivor and any children they may have. They are also concerned about the possibility of their both being killed in a common disaster leaving minor children surviving them.

Testators with minor children should consider who would have the care of any minor children who survive them.

The guardianship of minors act 1971 has been repealed in its entirety by the Childrens Act 1989, Schedule 15.

A parent with parental responsibility may appoint a guardian. Broadly speaking, a mother has parental responsibility irrespective of her marital status. A father has automatic parental responsibility if he has been married to the mother at any time later than the date of conception. An unmarried father may aquire parental responsibility by court order or agreement with the Childs mother. An appointment may be made by Last Will or in writing (section 5 (5)).

 An appointment by one spouse where the other spouse survives will now not normally take effect until after the death of the surviving spouse. If the surviving spouse also appoints a guardian, the two guardians will act together after the death of the surviving spouse.

Testators with minor children should consider who would have the care (guardianship) of any minor children who survive them by making sure that a guardian is named in your will. Thus giving someone of your choice your legal consent through your Will, therefore, preventing the state and social services stepping in and having to choose a guardian for your child in your absence.

The state will undoubtedly do its best for the child but why risk the unnecessary trauma this can cause. Make a Last Will and make YOUR wishes known.  It can take The Social Services years to make this decision for you.

AFTER they make this decision, COSTS could be incurred for doing it, payable from your estate, from your childrens inheritance.

Needless to say, great consideration must be given to appoint someone appropriate and responsible who can love and care for the infant as you would have done yourself. You may wish to consider a close relative or Godparent to fill this parental role. A suitable executor can also act as guardian and vice versa.

Quote from a badly written Last Will. 
"I leave everything to my wife and on her death it is to be shared between my children"
An absolute disaster! The husband wanted to leave everything to his wife, who would then, on her death, leave it to their children. This statement means that his estate by-passed  his wife in favour of his children. His wife is left  merely holding his estate in trust for the children. 
This is one of the reasons why lawyers spend more time, and make more money, sorting out disputes in badly drafted D.I.Y. Wills than they do from drawing them up.
  What does the term "Executor" mean

Executors and trustees are usually the same person or people.

You can appoint up to four executors. For parents, it would be normal to appoint at least two Alternative executors and trustees. If you have young children the possibility always exists that they will be needed to look after funds held in trust for children until the date specified in the Will or the child’s eighteenth birthday. It is expected the trustees will need various powers in relation to these funds, including power to advance money for maintenance or education of a beneficiary and power to invest.

trustees          
A Trustee is a person who is usually your Executor and is a person who holds your property on behalf of others while your estate is being administered. Frequently, Trustees are appointed to hold your estate for the benefit of infant children while they are under the age of eighteen.
An Executor's Duties        

An executor is appointed in a will to administer the estate after the death. It is usual, and sensible; to seek the agreement of the executor before the appointment is made. After the death, the executors' duties are defined in what is called 'the executor's oath.' The duties are in general.

"To collect, get in, and administer according to law the estate of the deceased” in accordance with the terms of the will.

Often, executors make the arrangements for the funeral, and when doing so, make themselves personally liable for the funeral account. If they do this they are entitled to be indemnified from the estate.

The extent to which an executor carries out his duties personally vary very widely. In some estates, there is very little to do beyond the closure and distribution of one or two building society accounts. Other estates can require substantially more work.

The executor may choose to ask a firm of solicitors to carry out some or most of the work, or, indeed, if a firm of solicitors is so instructed, to agree between them who will do which tasks. The executor can choose to delegate almost all the work to the solicitor, or to do the entire job him or herself, or to make any other arrangement in between.

At a minimum, however, the executor should expect to be involved in a certain amount of correspondence and signing of documents. It would be usual also for the executor to do much of the initial work of locating and identifying assets in the estate and also where there are gifts of particular items to arrange for the distribution of these items.

Whatever happens, an executor is entitled to have his proper expenses paid out of the estate, so the task should not normally be a financial burden.

Where people do go wrong from time to time, is in under estimating the need to comply precisely with several of the law's requirements. For example, it is common, but quite wrong, for executors to distribute items from the estate to family members but not in accordance with the terms of the will. 'He always said I could have the clock.' may be true, but if it isn't what was said in the will, or memorandum of wishes, or written specifically elsewhere and which is mentioned in the will, it is incorrect for the executor to give the clock.

Last, it is perhaps worth dispelling the myth of the "reading of the will", where the executors, solicitor, and beneficiaries gather together amid great suspense, and simmering acrimony, to reveal the contents of the will. This happens very rarely, if at all.

 can an executor also be a beneficiary                
The answer is yes, provided the Will contains the appropriate wording. However executors, beneficiaries, or the spouses of executors, beneficiaries, MUST not witness Wills as gifts to witnesses or their spouses will not be allowed to stand, Save for exceptional cases.
Alternative executors and trustees                 
Alternative executors and trustees will be needed to look after funds held in trust for children until the date specified in the Will or the child’s eighteenth birthday. It is expected the trustees will need various powers in relation to these funds, including power to advance money for maintenance or education of a beneficiary and power to invest
  Do I Need to Give My Executors any Special Powers ?
YES. It is essential that you give to your executors all of the powers possible (available in law) to enable them to administer your estate properly. If your executor is also Trustee, you need, for example, to give your Executors special powers to invest cash, insure property and manage money for any infants. (children under 18) 
  What does the term "Trustee" mean ?
A Trustee is a person who is (also) usually your Executor. A trustee is a person who holds your property on behalf of others while your estate is being administered. Frequently, Trustees are appointed to hold your estate for the benefit of infants until they reach the age of eighteen.  
Can My Executor Get Professional Help if They Need It

If you choose a member of your  family to be an Executor, please remember that the executor may need to instruct professionals if necessary,  for example, Solicitors, Accountants, Mortgage adviser or Stockbroker and if this is the case you will need to ensure that your Last Will provides (legally) for your Executors to obtain and pay from your estate for expert advice if they need to do so.

When do you need to make a New Last Will and Testament?    

We would advise that you make a completely new last will if you need to make any alteration to an existing will.

You can revoke your last Will at any time by cancelling it. This is done by destroying it, or by making a new Last Will. A new Last Will dated and witnessed correctly automatically revokes or cancels any earlier Last Will made by you.  

A Last Will and Testament only becomes legally valid after it has been signed dated and witnessed correctly.

You can make alterations to your Will by adding a Codicil, a mini-will, but if the alterations are extensive then it would be advisable for you to prepare a new Last Will altogether. Note: Codicils are no longer any cheaper or easier to do than making an entirely new Will. This is simply because of the use of computers and printers.

Do not, under any circumstances, attempt to write in any additions or make any alteration to your last Will yourself after it has been prepared. Do not permanently pin, staple or clip any papers to your Last Will.

It is always sensible to review the provisions contained in a Last Will, to consider if any change in your circumstances has altered the contents of your Last Will. Changes can be in the form of a variety of events.  Here are just SOME of the events that would ordinarily require a change to your last will. Certainly there are other reasons.

Here are just some of the events that would ordinarily require a change to your last Will. Certainly there are other reasons.

  1. If you marry or divorce
  2. The birth or adoption of children
  3. To add or change guardians for children
  4. A significant change in financial status
  5. A significant change in tax laws
  6. A desire to add beneficiaries
  7. A desire to change beneficiaries
  8. The death or incapacity of a named executor or trustee
  9. To change personal details like address changes for you or someone mentioned in the will
  10. You may also seek our advice in the future; free of charge, with questions or concerns you have regarding your will.
  11. We shall also keep a copy of your Will and shall replace it if for YOU if it is damaged, lost or destroyed.

 

Marriages revoke your will, except where the Will is written in anticipation of a specific forthcoming marriage.

Anyone who’s last Will was made before his or her present marriage needs to make a new will at once.

Divorce change but do not revoke your will. They do however exclude the former spouse as a beneficiary, but not as executor, if the former spouse was an executor you may have problems. Divorce is always an occasion for making a new Will.

These are just some of the reasons why Last Will and Testament should be reviewed regularly.  Certainly, there are many more reasons depending on an individual’s circumstance.

A very important point to be aware of is that you must not alter your existing Last Will in any way. You must not cross portions out or add other words or blocks of text to it. You should not attach extra pages with pins, staples or clips. It is far better to prepare a new Last Will altogether and then destroy the old one.  

Can I change my Will after I have signed it
NO. A very important point to be aware of is that you must not alter your existing Last Will in any way. You must not cross portions out or add other words or blocks of text to it. You should not attach extra pages with pins, staples or clips. It is far better to prepare a new Last Will altogether and then destroy the old one. 
 Keeping your Will up to Date the Easy Way
WiseWills offer an annual retainer service. This service provides that WiseWills shall write you a new Last Will and Testament whenever you want to amend or change any details in it, no matter how small or often, so long as you continue with the £5.00 per annum premium. We shall also keep a copy of your Will and shall replace it if for YOU if  it is damaged, lost or destroyed. You may also seek our advice in the future; free of charge, with questions or concerns you have regarding your will. .  

NOTE: We would not however replace it for a third party after your death.

Here are just some of the events that would ordinarily require a change to your last Will. Certainly there are other reasons.

  1. If you marry or divorce
  2. The birth or adoption of children
  3. To add or change guardians for children
  4. A significant change in financial status
  5. A significant change in tax laws
  6. A desire to add beneficiaries
  7. A desire to change beneficiaries
  8. The death or incapacity of a named executor or trustee
  9. To change personal details like address changes for you or someone mentioned in the will
  10. You may also seek our advice in the future; free of charge, with questions or concerns you have regarding your will.
  11. We shall also keep a copy of your Will and shall replace it if for YOU if it is damaged, lost or destroyed.

NOTE: We would not however replace it for a third party after your death.

 Am I able to cancel my last Will and testament?    

Yes. You can revoke your Last Will at any time by cancelling it. This is done simply by destroying it or by making a new Last Will. A new Last Will dated and witnessed correctly automatically revokes or cancels any earlier Last Will made by you.  

Signing and dating your Will is known as executing your Will.

The Law in Scotland?

Most of this web sites information applies equally to all areas of the United Kingdom. There are a number of legal differences in Scotland, including: Differences in the laws of intestacy. I.E. You must make a new last Will after having children, otherwise your current last Will is considered void. You are allowed to make a last Will at a younger age. Spouses and children have a greater claim to the testator’s estate in Scotland. If you have any doubt and consider that any of these points may affect your last  Will. You will need to contact us personally for advice, or contact a solicitor.  

 Can My Last Will and Testament  be changed After I have died ?
In certain circumstances, your Last Will may be changed after you have died. There may be problems in the interpretation of your Last Will, which may cause ambiguity, or the Last Will may be contested. A Last Will may be contested if there are members of your family who are of the view that they are entitled to a part of your estate, but have been omitted from your Last Will. It is for this reason that you should have your Last Will prepared by a professional. Frequently, DIY or homemade Last Wills fail because basic wording has been used, and or, in cases of interpretation, when it is not possible for your executors to understand exactly how they should administer your estate.  

The famous actor, Richard Burton, added to his Last Will.  "That if anybody contested any part of his Last Will they would lose any bequest completely.

Do I need to Sign my Last Will in the Presence of Witnesses?

Yes. A Last Will and Testament  only becomes legally valid after it has been signed and witnessed correctly. Two persons must be present when you sign your Last Will and they must not be beneficiaries. A witness must not, in any way, benefit from the terms of your Last Will. If a person does witness your signature to your Last Will, and if that person is a beneficiary of your Last Will, then that beneficiary will not be entitled under the terms of your Last Will to be a beneficiary. A witness must also be over eighteen years of age and be of sound mind. The witness is confirming your signature on the Will, but does not need to be aware as to the contents of your Last Will. If you are suffering from a disability and are unable to write your name, special clauses need to be inserted into your Last Will.

To be legally binding, two witnesses who saw you sign the will must, also sign your Last Will. The witnesses must be totally independent from the Will, (as stated above), over 18, and cannot be a beneficiary or executor of your Last Will, or the spouse of a beneficiary or executor.

A witness does not need to see the content of your Last Will, only witness your signature on it. They should clearly write their full name, address and occupation. Witnesses to your Last Will can be married to each other. 

How long is a last Will and testament valid
A Last Will is valid until the Testator revokes it by making a new one, or the Testator destroys it because he or she has changed his or her mind because circumstances have changed for them.
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Last modified: November 19, 2013

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