Why should I make a Will?
Making your Will is the only way to ensure that your money and possessions are left to the persons you have chosen. If you have young children you can appoint guardians to care for them after your death.
Who can make a Will?
Every adult should have a Will and be of sound mind.
If you are living together, and not married, is it important to make a Will?
Yes, assuming you want your partner to inherit from you. It is very important for unmarried partners to make Wills, as without them, the surviving partner may receive nothing when the estate is distributed
Who should I appoint as my Executors?
Executors are the people appointed by you in your Will to carry out your instructions. You can appoint up to four Executors, but it is wise to appoint at least two. You can also appoint Reserve Executors, should your first choice be unwilling or unable to act. Anyone over the age of 18 can act as an Executor. An Executor can also be a beneficiary; in many family cases an Executor is often the wife/husband of the Testator (the person making the Will). If an Executor is a professional person or firm (e.g. solicitor or bank) then provision must be made in the Will for their charges by adding a 'charging clause'.
Who should I appoint as Guardians of my minor children? You should appoint Guardians if you have children under 18 years of age. The appointment of Guardianship allows you to decide who should be responsible for your children's welfare. You should also give consideration as to the age of the Guardians, do they have a good relationship with your children, do they have the same views regarding how your children should be educated etc?
Can my Executors also be Guardians?
Yes, it is quite usual for Guardians to also be Executors.
Do I have to list everything that I own in my estate?
No, but if you want specific objects or certain amounts of money to go to certain people, then you should list these. However, what you do not identify in your estate (everything else not listed, whatever it may be), is dealt with through distribution of the residue. It is important when leaving gifts, that you give the full name of the recipient and a full description of the gift.
Do gifts and legacies have to be under a certain value?
No. A gift can be of any value.
Can I leave a gift to a charity?
Yes, but you need to give the full name, address and registered number of that charity. What would happen if the person I've left a legacy to dies before I do? Normally, the legacy would lapse and then it becomes part of the residue of your estate unless you give instructions to the contrary.
What is the residue?
The residue is everything that remains after specific bequests (if any) and after payment of all debts, taxes and expenses. There is no need to itemise the residue, you can simply decide what proportion each beneficiary is to receive, if you are naming more than one. For example, you may wish to leave the residue to your spouse and then for it to pass on to your children. If perhaps you do not wish your children to benefit in equal shares you can state what proportion each child is to receive. If you are single, or do not have any children you may wish to leave the residue to other named beneficiaries, for example, 50% to Mr A and the remaining 50% to be shared equally between Mrs B and Miss C.
Can I make provision in my Will for any funeral requests or medical donation? Yes. You can state whether you wish to be buried or cremated and you have make clear any particular wishes you have. Alternatively, if you have no preference this can also be included. You are also able to have a clause added stating any particular medical donation, however it is always a good idea to let close relatives know of your particular wishes.
Who should be the witnesses?
To make a legally valid Will it must be signed by two independent witnesses who are over the age of 18 years. The witnesses do not have to read your Will; they are there to witness your signature. Witnesses must not be mentioned in your Will as beneficiaries or married to a beneficiary.
Am I able to cancel my Will?
You can always cancel your Will by either destroying the original or by making a new Will. (Marriage automatically revokes any former Wills)
What happens to my estate if I haven't made a Will?
If you should die without having a legally valid Will, you will die intestate and the management of your estate (which includes property, monies etc) is done by administrators appointed by Court. This is explained by The Rules of Intestacy (requires Acrobat Reader for viewing).
Glossary of Terms
Absolute – Given without any condition
Administrator – A person appointed by the Probate Registry in the absence of a Will being found or a person who is appointed by the Registry to prove a Will, if there is no executor
Attestation or attestation clause – a statement made at the end of a Will above the signatures to the witnesses, which declares that the Will has been duly signed in the presence of the witnesses, who attest the Will and sign it in the presence of the Testator, and each other
Attorney – a person appointed in a Lasting Power of Attorney who can manage the affairs of a person (donor) who is unable to manage their affairs themselves
Beneficiary – a person who inherits (benefits) under a Will
Bequest – a gift given in a Will, normally a personal possession or a monetary gift
Codicil – a formal legal document to update an existing Will
Deed of variation – allows the beneficiaries of an estate to vary by mutual agreement the provisions of a Will within a period of two years from the date of the deceased’s death
Devise and bequeath – a gift by Will or codicil
Distribution – the process of dealing with an estate after receiving a Grant of Probate or Letters of Administration. After paying any debts and funeral expenses and to divide the remainder of the estate between the beneficiaries.
Executor – a person appointed by Will to deal with the estate. An executor cannot charge a fee unless previously authorised by the Will, however an executor is able to reclaim out of pocket expenses. An Executrix is a female Executor.
Grant of Probate – This is a document which confirms the Executor has the power to administer an estate
Guardian – a person who is legally responsible for caring fro a minor child (under the age of 18 years
Holograph Will – a Will entirely in the handwriting of the Testator
Intestate – this is when someone dies without leaving a legally valid Will and the Rules of Intestacy will then apply to their estate
Joint tenant – this term is used when two or more persons jointly own a property and when one of the people dies, that share passes to the surviving joint tenant or tenants.
Legacy – a gift of money (pecuniary legacy) or personal possession left in a Will
Life interest – the right to the benefit for life of either money or property and then reverts to the testator’s estate when the life tenant dies
Life tenant – the person who benefits from a life interest in a Will
Personal chattels – are defined by the Administration of Estates Act 1925 s55 and includes general items such as jewellery, clothing, articles of household or personal use or ornament (but does not include money)
Personal representative – the person who is appointed by the Probate Court to deal with a deceased persons estate in a Grant of Representation
Probate – is a document issued by the Probate Court and allows the executors to administer a deceased person’s estate
Residue – the remainder of a deceased’s estate after any legacies have been paid and all debts, taxes and expenses have been paid
Tenants in common – a way for two or more people to own a property, each person owns a share which will then form part of their estate
Testator – the person making a Will (a Testatrix is a female person making a Will)
Trustee – a person appointed by Will to look after an estate
Witnesses – to make a Will legally valid it must be signed and dated by the Testator/ Testatrix in the presence of two witnesses (who must not be a beneficiary or married to a beneficiary in the Will).