The Basics

No matter how young or old you are, every adult should have a Will. Even when you have a Will in place, it is important to review its contents every two to three years.

You should also review your Will when a major event happens in your life, such as times like these:

• Marriage for the first time and remarriage
• Re-marriage or cohabitation where you have children from previous relationships to provide for
• You or your children get divorced or separated
• You inherit some money
• The birth of a child within your family
• One of your named beneficiaries, executors or guardians dies or becomes incapacitated
• You move house
• You buy or sell a business
• You have to provide care for a family member
• You suffer illness or injury

What are you worth?

The answer may well be rather more than you think; how much is your house worth for instance?

Values will inevitably change over the years, but it is helpful to know, in broad terms, the possible value of your estate so that, for example, we can advise whether inheritance tax is likely to be a relevant consideration.

Please remember that life insurance policies may form part of your property at death, but may be written for the benefit of someone else, for example your partner, husband or wife. In this case, such policies may not form part of your estate for probate purposes. This may result in a saving in Inheritance Tax.

Can I leave someone out of my Will?

One advantage of making a Will is that you can choose who will benefit and who will not. The Intestacy rules will automatically apply if you do not make a Will. There is one exception. If you fail to make provision for someone who is financially dependent on you, for example your spouse or children, such dependants may be able to apply to the Court for a share of your estate.

Do I need an Executor?

Yes. Your Executor has the responsibility for dealing with your estate in accordance with your Will. Your Executor has to comply with the formalities and obtain a Grant of Probate from the Probate Registry. You may choose to have more than one Executor. Where your beneficiaries include children under 18 years or someone incapable of looking after their own affairs, you will need at least two Trustees. Executors and the Trustees are sometimes the same people.

You may appoint your husband or wife, or one of your children as Executors, as they should be someone you trust and someone you think would be capable of dealing with this kind of task. It would be a good idea to find out whether they would be willing to act. Someone appointed as Executor in a Will has the right to renounce that appointment if they do not wish to act. Remember, being an Executor does not stop that person benefiting under the Will.

The Directors of Onions & Davies are generally willing to accept appointment either on their own account or jointly with a named person. We would make a charge for work carried out in our capacity as Executors, in the same way as we would if Executors asked us to act on their behalf. The advantages of having professional Executors are that you can be sure that they are independent, having no conflict of interests and also that they are legally accountable for the proper administration of your estate.

Unmarried couples and couples not in a Civil Partnership

If you are unmarried or not in a Civil Partnership, you cannot leave your property to your partner unless you make a Will.

Where the Intestacy rules apply, the surviving partner may have to go to Court to apply for a share of the estate. To be eligible, the surviving partner would have to be able to show some financial dependence on the deceased person and prove a closeness of relationship with him or her over a number of years.

In the eyes of the law, a couple who are living together have none of the automatic rights of a married or civil partnership couple when it comes to sorting out a deceased partner’s estate.

For example, the legal beneficiaries may legally enforce the sale of the property occupied by the surviving partner.

We often see long-running family disputes surface in these circumstances, which can be tremendously difficult, traumatic and costly for the families and former partners and damaging to long term relationships, even after a resolution is achieved.

Changing your Will

It is advisable to review your Will from time to time to ensure that it reflects changing circumstances. Typically we advise our clients to review their Wills every two to three years.

You should always consider making a new Will if your circumstances change in any important way. For example, if you marry, your earlier Will is likely to become invalid. If you divorce, the effects of your Will on beneficiaries is likely to change. If you separate, or there are new family or friends to provide for, or your financial circumstances radically alter, then you may need to change your Will.

Have you considered making a Lasting Power of Attorney?

our Will will be effective only from the moment of your death. There is a procedure whereby you can appoint someone to look after your affairs if you cannot do so yourself, for example as a result of dementia, or stroke, or brain damage following an accident or because you become frail with advancing years.

Very real problems can and do arise in sorting out the financial and property affairs of people in this situation. Making a Lasting Power of Attorney is an effective form of insurance that if this situation should arise in your own life, there will be no complications and the person of your choice will be handling your affairs.

LPAs can cover not only property and financial affairs but also health and welfare issues. It is often sensible to consider making an LPA at the same time as making a Will.

This information refers to the law of England & Wales only, which from time to time changes. In particular, tax information changes annually. It is not a substitute for professional advice, which is up to date and specific to your needs. This information is a summary of the provisions relating to making wills and cannot cover every aspect of their operation. It represents our understanding of current legislation in England and Wales but should not be relied upon as an authoritative statement of law nor as constituting advice. We would advise that legal advice be sought in every circumstance.