MAKING A WILL
Making a Will can seem like a daunting thing to do, but we advise every client that it is important to make a Will, and that it is always best to speak to a solicitor about making a Will now, rather than leaving it to another time. It is not expensive to make a Will and you can change your Will as often as you like during your lifetime.
By making a Will you can:
• Decide who you want to benefit from your estate
• Appoint a trusted friend or relation to be executor of your estate
• Appoint guardians for your children
• Appoint trustees to look after funds or property for your beneficiaries
• Reduce exposure to the risk of nursing home fees
• Protect against or reduce the impact of Inheritance Tax
If you do not make a Will, there are certain rules which determine who will benefit from your estate. These are known as the Rules of Intestacy. They will not necessarily suit your circumstances and there is no flexibility whatsoever in how they are applied.
You will probably have quite a few questions in mind when thinking about making a Will. Here are some of the most common questions we are asked:
What is a Will?
A Will is a formal legal document which you make, in the presence of two witnesses, setting out what happens to your property after you die. There are strict rules about how to make a Will and it is important that these are followed otherwise the Will may not be valid or some of the provisions in the Will may not take effect. Your solicitor will ensure that your Will is properly made and that it is valid.
What do I need to consider before making a Will?
It is often helpful to write out a list of your assets such as your house, any other property you have, savings accounts or other investments and personal items which you might want to leave to a particular person for sentimental reasons. Then you should consider who you wish to benefit from your estate. Sometimes you may have particular reasons why someone should not benefit from your estate. Your solicitor can give you guidance about this.
You will need to appoint executors in your Will. Normally, two executors are appointed and they will ensure the provisions of your Will and put into effect. It is advisable to seek their permission before appointing them in your Will. There are no special qualifications required but it is best to pick a trusted relation or friend.
Can my Will be challenged?
There are certain circumstances when a Will can be challenged under the Inheritance (Provision for Family and Dependents) Order (Northern Ireland) 1978. This legislation provides certain safeguards to spouses, children and other dependents so that they can bring a claim if they are excluded from your Will or if reasonable provision is not made for them in your Will. This is a relatively rare occurrence and your solicitor can give you guidance about your own particular circumstances.
Also, if you have made particular promises to certain people who have relied on those promises, then they may be able to challenge your Will if you do not honour your promises. Again, this is a rare occurrence, but you should ask your solicitor about this if you think it may apply to you.
I have young children. What is a guardian?
You can appoint guardians in your Will who will be appointed by you to have day to day care of your children. It is important that you speak to potential guardians before appointing them in your Will. We usually recommend that you also appoint your guardians to be trustees of your estate so they hold funds and/or property until your children reach adulthood. The default age when your child can inherit their share of your estate is 18 years of age, but often parents increase this age to 21, 23 or 25 in their Will. The trustees can advance funds from your estate before your children reach adulthood, in order to provide for your children’s needs and, for example, to pay for their education or training in a particular career.
Thankfully it is a very rare occurrence for guardians/trustees to be required, but it is best to appoint them in your Will so as to avoid any disputes between relations or friends, and to put in place appropriate arrangements in relation to your assets and how they are used for the benefit of your children.
I want to benefit a child or loved one who has special needs and could not manage funds or property on their own. Is this possible?
Yes, appropriate provisions can be incorporated in your Will to cover such circumstances. Please ask your solicitor for guidance about this issue and we can prepare a Will specific to your circumstances.
What is Inheritance Tax?
Inheritance Tax is charged on any part of your estate over the current threshold of £325,000. For example, if your total estate is £425,000 then tax of 40% of £100,000 would be payable i.e. £40,000. Husbands and wives each have an allowance of £325,000 which they can share between them, so for a couple, no tax will be due on the first £650,000 of their property.
There is also an additional allowance for the part of your estate which consists of your family home (or the proceeds of sale of your former family home, if it has been sold).
There is a total exemption from Inheritance Tax for assets which pass from your estate to that of your spouse.
Inheritance tax is complex and if you think that your estate is valued at more than £325,000 please ask your solicitor for further guidance.
When does a Will take effect?
A Will only takes effect on death. For that reason, you can make a Will and change it as and when you need to. We recommend that you review your Will every five years, or when a significant change occurs in your circumstances, such as marriage, divorce or death of a spouse or loved one. Marriage and divorce revoke (i.e. cancel) your Will so it is important to make a new Will after marriage or divorce.
This Article is for guidance purposes only. It is important to remember that you are unique and your circumstances are also unique. By speaking to your solicitor and discussing your particular circumstances, we can draft a Will which is appropriate for you and reflects your wishes.