Ensuring that you have a valid Will is one of the most caring and responsible things youcan do for your family and loved ones. Without it, those you love and care about could well suffer both financially and emotionally. Nobody likes the task of writing a Will as it means, thinking about the fact that you will die one day. Well, there are no exceptions to the rule so why not face it responsibly and intelligently. Get it done properly and then go on to something more exciting – BUT GET IT DONE!
Having taken the first step and made your appointment with City and Country Financial Services to get your Will written, this paper will help you understand the process and some of the terminology that you may come across. Firstly let’s look at the terminology or key words thatare used.
BENEFICIARY: A person who will benefit or receive something under a Will.
CODICIL: A written statement made by a testator (the person making a Will) which alters the Will insome way. It is a legal document which must be signed and witnessed in the same way as a Will and kept as one with the original Will. It is wiser to completely rewrite a Will rather than use a codicil to change it
CIVIL PARTNERS: Same sex couples who have been through a civil ceremony and are
registered under the Civil Partnership Act 2004.
COHABITEES: Two people living together in an unmarried state
DOMICILE: Your country of origin or the country you intend to reside in permanently or indefinitely.
ESTATE: The total of the assets (property, money and all other possessions) a person leaves behind on death.
EXECUTION: The act of signing a Will.
EXECUTOR: A person or persons who distribute the estate in accordance with a Will after the death of the testator (the person who made the Will). A female executor may be called an Executrix. A beneficiary under a Will can be appointed as Executor/Executrix of the same Will.
INTESTATE/INTESTACY: If a person dies without making a Will or leaves a Will which is wholly or partly invalid then that person is said to have died completely or partially intestate.
LAY EXECUTOR: A person selected as an Executor who is not entitled to charge for those services.
MINOR: A male or female under the age of 18 years.
PROBATE: The legal process of settling the estate of a deceased person, specifically resolving all claims and distributing the deceased person’s property under the valid will. Once a Will has been probated by the court, everyone can rely on its authenticity. Probate protects the instructions of the deceased, confirms the Executor as the personal representative of the estate, protects the interests of family members who may have claims against the estate, and protects the Executor against claims and law suits.
SPOUSE: Refers to heterosexual married couples only.
TESTATOR: The person making the Will. A female testator may be called a testatrix.
VALID: leans legally effective.
WILL: A document (or collection of documents) by which a person (the testator/testatrix) disposes of his or her estate. It takes effect on1v oil the death of the testator/testatrix.
WITNESS/ATTESTING WITNESS: There must be two witnesses to you signing your Will -no more or no less than two witnesses. They are required to sign in the presence of each other and in the presence of the testator/testatrix – after they have seen the testator /testatrix sign. They sign at the foot or end of a Will. A witness to a Will does not have to be a JP (Justice of the Peace).
What is your Will for?
The main purpose of your Will is to provide instructions for the distribution ofyour estate after your death. The choice is yours as to who you nominate to receive what share of your property. The only way you can legally record who you choose to receive what share of your property is to write it down in the form of a legal Will.
Who should have a Will?
Everybody should have a Will regardless of how little they may own. It is the only legal and commonsense way to ensure that those you care about will benefit from any property or other assets you leave behind. An equally important step is to safely store the original of your Will after it is written.
Why have a Will?
If you don’t have a valid Will then your estate will be disposed of under the rules of intestacy. Don’t make the mistake of assuming that this will result in your property being distributed in the way that you would have wished. The rules of intestacy often do not produce that result. You need to make a Will to ensure that your estate passes to the people you choose and does so without delay or argument. Without a Last Will and Testament unmarried partners may not inherit your estate. sometimes even spouses may not automatically inherit all of your estate. Apart from this very important reason for having a Will, think about the following also:
Consideration for family and loved ones who are left behind should far outweigh any anxiety you have about making sensible arrangements which will apply in the event of your death.
What happens if you don’t make a Will?
If a person dies without leaving a valid Will they are said to have died intestate. This may occur because the deceased never made a Will at all, or because they revoked their Will and did not make another, or because the Will is invalid; Approximately two out of every three people who die in England and Wales each year die intestate (without a valid Will). The Act which deals with the laws of intestacy is in place to say where your estate passes,
who deals with it and what rules they have to follow.
Unfortunately, because the most of the rules and regulations were formed in 1925 they are considered out-dated and usually do not reflect the full wishes of most people. These rules often do not produce the result that a person would wish. For instance, spouses do not necessarily receive the whole estate and people who live together have no rights to the property of their live-in partner.
Does a Will have to be in writing?
Yes – a Will must be in writing to be legal and enforceable. It can be hand written or typed but must be legible. It does not have to be written out personally by the testator (that is, the person making the Will) but must be properly signed by the testator. This may assist older and physically incapacitated people.
Can a Will be changed?
Yes. A Will is revocable – that is, it can be changed at any time. A new Will cancels any earlier Wills. The last known Will is the only effective one.
When do you need to make a new Will?
Although there are various circumstances under which you should make a new Will, the key ones are:
Where should a Will be kept?
There is no requirement to deposit a Will with anybody in particular. It is strongly recommended, however, that the original of your Will not be kept at home. If that original is lost, destroyed or simply cannot be located then you may be classed as being intestate.
What about Inheritance Tax?
Inheritance tax is a tax imposed on the value of a person’s estate upon death. For the 2013/14 financial year, tax is payable at the rate of 40% on the value of net assets over the threshold of £325,000. These figures are set in the annual budget each year. Exemptions apply for gifts to domiciled spouses/civil partners or a registered UK charity and in other limited situations
When should you change or update your Will?
You should he very aware that your Will can become invalid (that is, of no legal effect and you are therefore intestate) due to:
CHANGES IN RELATIONSHIPS
The main ones that you should know about are marriage, entering into a civil partnership, remarriage and divorce.
Marriage/Remarriage: When a person marries, enters into a civil partnership or remarries, any existing Will is automatically totally revoked (that is – cancelled) and that person is then intestate unless a new Will is made. The only exception to this is where the existing Will “contains an expression of specific contemplation of marriage”; otherwise a person who marries or remarries must make a new Will.
Divorce: When a person divorces, any gift that was made to the spouse is automatically revoked. It is therefore strongly recommended that a divorced person makes a new Will immediately in order to cater to his/her changed financial and personal circumstances.
Cohabitees: Couples who live together (often called ‘common law spouses’) should have a separate Will which specifically sets out his/her wishes as the law treats such relationships differently to marriage or civil partnerships. There are no legal rights that attach to ‘common law spouses’. If you die without a Will, the laws of intestacy make no provision for your partner. It is strongly recommended that, in the event of a relationship being terminated (or a new relationship commencing), a new Will be made.
Other: You should also consider updating your Will if any of the parties to it (including beneficiaries, executors etc) die or change their names. Needless to say, if you change your mind about who is to receive what from your estate then a new Will must be written.
Should a husband and wife have separate Wills?
A husband and wife must each have their own separate Will – even though they may be identical in terms of who is to receive their jointly-owned property and assets.
What about adopted children and children born outside of marriage?
An adopted child becomes the child of the adoptive parents as if he or she had been born to those parents. Children born outside of marriage now have the same rights, on death of the parent(s), as a child born to married parents. An often asked question is — If the parents die and leave minor age children, can the estate assets and monies be used for the upbringing and education of these children? The answer is — yes. Legislation gives a basic power to advance capital and/or income for the maintenance, education, advancement or benefit of beneficiaries including infants — but the words in the Will itself can also expand this basic power.
Please ask your City and Country Financial Services Advisor about the possible consequences of excluding such people from your Will.
Can your Will be changed?
Yes – you are entitled to change your Will at any time. You should ensure,however, that this is done properly. It is strongly recommended that this be done by writing out a completely fresh Will. A codicil (see the definition of this term at the start of this document) can be used but is not recommended as it still requires to be signed and witnessed in exactly the same way as a Will.
NOTE CAREFULLY – After your Will has been executed (that is, signed by you and the witnesses), you cannot then alter it or change it on the document on which it is written. In other words, you must not rub out, erase or in any other way alter your Will once it is completed.
What if your Will is destroyed or lost?
As your Will must be in writing to be legally enforceable, you must immediately write a new one if your existing Will is destroyed or lost. Failure to do so may very well mean that you are intestate.
Must a Will be written in English to be legal and valid?
No, a Will need not be written in English. If it is written in a foreign language, the translation of it and satisfaction of the Court’s requirements that the Will maker knew and approved of the contents of the Will must be satisfied in accordance with laws of evidence.
What about visually impaired people and those who can’t read or write English properly?
People in these categories require specialist help to ensure that they make out their Wills correctly and in a legally binding way and your City and Country Financial Services Advisor can help in this regard.
“Where there’s no Will there’s no way”
Whilst it may sound like a flippant way of expressing it, the above statement is true. If you go to the trouble of writing a Will and it cannot be found after your death – you will be regarded as having “died intestate”. In other words, it will be the same as if you Had not written a Will at all. Please treat this as an early reminder that, whilst writing your Will is the first important step, the second equally important step is to safely store the original of your Will after it is written. Finally make sure your Executors know where your Will is stored, so it can be retrieved when needed.