Wills are a crucial part of planning for the future and yet only 44% of UK adults have made a Will according to the latest National Wills Report. This same report also found that 42% of adults have not talked to their loved ones about what happens upon their death. The reasons cited included ‘I haven’t got round to it yet’ (39%), ‘it’s too morbid’ (6%), and ‘I don’t know how’ (11%).
As part of an ongoing series to help demystify Wills and to normalise having a conversation about them, John Thompson at Roythornes will be answering some of the most commonly asked questions about Wills.
How do Wills work?
Wills are formal documents by which someone (a testator) can express their wishes as to how their assets (e.g. property, possessions, money – collectively called their estate) will be distributed and to who (beneficiaries), who will be responsible for administering this estate (an executor – sometimes referred to as a personal representative) and to appoint guardians and trustees for any minor children upon death.
There are set formalities to ensure that the testator’s wishes are legally effective. The Will itself must be signed by the testator and witnessed by 2 independent witnesses. No one listed as beneficiary should act as a witness.
A Will is then typically stored with a law firm or with the Probate Service - this is by no means a formality, but it can help ensure that original Will is safely protected until needed. You can make a new Will to update your wishes at any time, such as after major life changes, and indeed, it is worth reviewing your Will and taking advice on its continuing suitability at least every 5 years.
Upon the death of the testator, the executors’ authority to act is derived from the Will but they may, in some situations, need to obtain a grant of probate to affirm their authority and to deal with certain assets. In such a case, the original Will has to be sent along with the probate application to the Probate Registry, hence it is really important to keep the original safe (and ensure ahead of time that it is valid and otherwise in order).
It should be noted that not all property passes under the terms of a Will and within one’s estate. Some assets may instead be held “on trust” and usually follow a completed nomination (e.g. pensions, life insurance or death-in-service benefits), or automatically pass to someone else by operation of law (e.g. some types of jointly owned assets).
If you die without a Will, then you are said to be intestate, meaning your estate will in default be distributed in accordance with the rules of intestacy. This is a whole topic in itself, and to be covered on another round of most asked questions.
Although a Will only takes effect on death, it is an important part of someone’s estate planning during their lifetime and should be considered alongside documents that can take effect during one’s life, such as Lasting Powers of Attorney and Trusts.
Are Wills public record?
Wills, Codicil (i.e. a legal amendment of an existing Will) and other testamentary documents typically become a matter of public record once they are sent to the Probate Registry alongside an application for a Grant of Representation.
My colleague, Esther, covered this in detail in her excellent blog here on the implications of this back in 2021.
As covered by Esther, if unveiling specific feelings and wishes are a key concern, you may benefit from speaking to a solicitor about how best to discreetly set out and implement your wishes.
Can a Will be changed after death?
Yes, provided that any beneficiary who may be left in a worse position by the change also consents to the variation. Variations can be useful for the beneficiary’s own tax and estate planning purposes (such as to redirect funds to the next generation if not needed or to make use of charity exemption, tax allowances etc) or perhaps to resolve issues such as ambiguity in a Will.
Typically, such a variation will be implemented through a Deed of Variation, and presently need to be completed within two years of death and properly elected in order for the variation to be treated as if it had been included in the original Will and the estate so distributed for tax purposes.
Care needs to be taken in respect of the retrospective tax treatment to the deceased’s estate. Personal representatives should check whether additional inheritance tax or capital gains tax will become payable as a result of the variation. Given the potential burden that could be placed on the parties involved, we would always recommend seeking advice from a solicitor specialising in tax and estate administration matters when considering such a variation.
Variations that affect the entitlement of a beneficiary who is a minor, unborn or lacks mental capacity, usually require the court’s consent.
Can you make a Will without a lawyer?
There is, legally, nothing stopping someone from drawing up their own Will. That said, given the significant number of pitfalls that can undermine the validity of a Will and a number of other complexities, it is strongly advised to seek professional advice, even for what might appear to be straightforward Wills and circumstances.
There are also countless Will-writing services available, however, some of these services lack the same level of regulation as solicitors and there can be fluctuating levels of standards and expertise.
How do you leave money to a Charity in your Will?
You can leave gifts to charity in your Will – indeed, research carried out by Savanta indicates that one in four Wills handled by UK legal advisers include a charitable donation (with Boodle Hatfield estimating that this raised £1.7 billion the latest available tax year data).
Asides from providing a valuable source of funding for good causes, leaving gifts to charity in your Will can also serve as a valuable estate planning tool due to the tax advantages provided. Gifts to UK charities are exempt from Inheritance Tax and can even lead to a reduction in the Inheritance Tax rate (36% instead of the usual 40%) if more than 10% of the so-called “net qualifying estate” is left to charity.
If you are leaving money to charity in your Will, a solicitor can assist with drafting the Will to utilise these tax reliefs and also help draft clauses that will help express your wishes on what you may wish the money to be specifically used for and cover, for example, what will happen if your chosen charity was no longer operating or merged with another charity.
If you require advice on drafting a Will, or on any other issues raised above, then please contact a member of our Private Client team, and we will be happy to discuss matters with you.