Do You Have A Valid Will?
Posted on 3rd May 2022 at 11:08
Signing and witnessing your Will might seem straight forward, however, far too many Wills are incorrectly attested, rendering them worthless. Careful consideration should be given to who you choose to witness your Wills to ensure they are legally permitted to do so.
Your will needs to be very specific as to your intentions.
Making a gift of a possession such as an item of jewellery needs to be obvious what the item is and who is the intended beneficiary. A Will that states ‘my best ring’ or ‘my gold ring’ is not always specific enough to avoid ambiguity.
Failing to appoint Guardians for your children can compound the devastating effect of losing both parents.
If Guardians are not appointed in your Will or by other legal methods, you are effectively asking the courts to decide who becomes the legal Guardians of your children. This needs very careful consideration and expert advice to ensure your Will appoints the correct Guardians.
Allowing a Disabled or vulnerable person to inherit directly from your estate can have sever consequences for the beneficiary.
It's important to consider a Trust in this circumstance, which will allow the beneficiary to continue to receive they benefits from the Government as well as the gift from your Will.
Deliberate depravation of assets.
Whilst this is not part of the Will writing process it often comes up in conversation during the process and its vital you understand the potential consequences of giving away assets in your lifetime. You should consider gifting money to your beneficiaries in your lifetime if you were going to pay Inheritance Tax when you die. We strongly advise you seek advice before transferring you home to your beneficiaries if your intention is to remain in the property. This is known as a ‘gift with reservation of benefit’, meaning you haven’t given the property away as you still have the benefit of living there. If your reason is to avoid care home fees it will be viewed as ‘Deliberate depravation of assets’ and therefore the gift or Trust could be unwound.
Unmarried couples, where only one party owns the property they both live in, has the potential for sever complications if this is not address.
Whilst challenges to Wills can be successful as the party living in the property may have rights in certain circumstances, you should consider ‘Right to Occupy’ for your unmarried partner, allowing them to remain in the property when you die but ultimately allowing the house to pass to your intended beneficiaries. Unmarried couples should seek advice as the law relating to married couples does not apply here.
Appointing a Solicitor as your Executor or Trustee might seem the most practical solution..
but you must remember that the fees that can be charged are dependent upon the policy of that Solicitor at the date of death. In some circumstances this is the right decision but, in most cases, this is adding a significate cost to the estate that could have been avoided by appointing a trusted family member or friend.
Pecuniary cash gifts in a Will are specific sums of money gifted to a beneficiary.
Often these can be a large portion of the estate. You need to be aware these gifts are paid out first. For example, if you leave £20,000 to your best friend and the remainder of your estate to your children and you die leaving only £20,000 in your estate, your best friend will be paid in full leaving your remaining beneficiaries with nothing.
Funeral wishes are an important part of a Will that is often overlooked.
If you choose not to state your wishes, your Executors will have to decide how your funeral is carried out. This can often present problems if you have never discussed your wishes and your executors and they cannot agree.
Finally...
You must ensure you ORIGINAL WILL is available when its needed. Copy Wills have no value. If you are unable to find the original Will, it would force your estate into intestacy, unless it can be proved the intent of the copy is a true reflection of the original. This can involve complicate applications, declarations, affidavits and legal fees.
Storing you Will for a small annual fee should be considered and the registration through the National Will Register.
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