Writing a Will is a minefield if you do not get the right advice and make sure when you make a Will that the correct procedure has been followed in order to prevent your Will from being challenged or deemed unlawful.
It can have significant implications for the distribution of your assets after your death, and the tax treatment of your estate. Occasionally, however, simply making a Will is not enough. It is not unheard of for a Will to be challenged, especially when the estate is of a high value or family circumstances lead to a conflict between beneficiaries.
As such, it is vitally important that your Will stands up to legal scrutiny. Many people make a cheap Will using a DIY kit at home, but this can lead to all manner of problems, therefore it is advisable to use a solicitor, Will drafter or an internet Will site which is often cheaper but has had legal approval from a firm of solicitors.
Speak to a solicitor
Some people begin the Will making process by considering making a Will themselves . This is a perfectly reasonable course of action as for some making a Will is relatively simple enough, consisting solely of minimal instructions to executors to complete a basic Will. You can also make a Will online and as long as the site is supported by a solicitor or legal advisor who specializes in advising on Will writing that can be a fast, legally valid cheaper Will writing option. However, in more complex cases it will be necessary to seek proper legal advice. This is particularly true if you are establishing a trust, or if your personal affairs are particularly complex. The golden rule is “if in doubt “ then you should seek professional advice from a solicitor specializing in Wills and probate.
Confirm who your executors will be
You should always check with your chosen executors before naming them in your Will. Executors may be obliged to shoulder a significant burden, and you should clarify the nature of their role with them before completing the document. Furthermore, if you outlive your executors it is vital that you amend your Will accordingly.
If any of the circumstances below occur you should consider altering or re-writing your Will
• The death of a spouse or close family member
• Death of an executor
• Divorce or separation
• Marriage or remarriage
• Birth of children
• Moving house
• Starting a new business
• Receipt of a windfall or inheritance from a relative
• Serious illness
• Redundancy
• Retirement
After particularly significant events, such as the death of a spouse or civil partner, divorce or indeed marriage you may wish to re-write your entire Will. Sometimes as in the case or marriage or a civil partnership, you and your partner may decide to make a joint or mirror Will. At the beginning of every Will is a sentence outlining the fact that the Will you are about to complete revokes all previous such documents and that these previous Wills are no longer valid or of legal relevance and cannot be used in disbursement of your estate.
Always let your executors know if you have changed your Will and where the new Will is stored.
What if I need to set up a trust
Trusts are a very useful legal device, particularly for those who wish to provide for long term care for a family member etc. However, it is important that the document is properly constructed in order that the trusts are valid. You should make sure that you have permission from your chosen trustees before naming them in your Will or any other document establishing a trust. This is specialist advice and it is advisable to speak to a solicitor on the best way of how to make a Will.
Make sure your Will is signed and witnessed properly
If your Will is not signed and witnessed appropriately, then this could lead to the Will writing process being questioned and the Will being deemed unlawful. When you make a Will, it will have to be signed and witnessed by two independent people, i.e. those who are not beneficiaries of the Will. All the witnesses must sign in each others presence together with the person making a Will. Therefore care should be taken to ensure this process is adhered to when making the all important Last Will and Testament.
Storing the Will
Make sure that you keep copies safe; You can store with your solicitor or with a bank for safe keeping. Ensure that all relevant parties (particularly the executors) are aware of its existence and know where to find it. Writing a Will should not be too strenuous a task unless your affairs are unusually complex. Giving consideration to these simple tips should help ensure that your Will is effective, and that your dependents receive the benefits you have intended.
Friday 15 May 2009
Thursday 14 May 2009
Perils of a DIY Will
There is a lot of information on how to make a will or writing your own DIY Will. It can be a cheap option, but with something perhaps as important as your Last Will & Testament a “cheap will” may not be advisable. There are various legal formalities that must be followed to ensure that the Will is valid and even the simplest error or omission could cause problems for your family and friends after your death.
The following are the most common causes of legal problems and disputes surrounding a Will. Such disputes can cause considerable distress and expense, and yet with careful attention, professional advice or following a strictly guided format that you might find with an internet or online Will, they can be avoided.
What if the Will is nowhere to be found?
Sometimes after a death, there is uncertainty over whether a Will was made, and where any Will that was made has been stored. If your loved ones don’t know whether you have made a Will, or they believe you’ve made a Will but don’t know where to find it, this may mean that they have to spend a lot of time searching for it, and if it is not found you will be deemed to have died ‘intestate’. If you die “intestate” then it could be the state that decides how your money and assets are disbursed.
It’s possible that an old Will is found rather than your Last Will & Testament and so when you make a Will, it is important to inform your executors that you have made a Will or amended your Will, and to let them know where it is stored, which makes it easy to locate and reduce hassle for executors when dealing with your Will and probate.
Has my will been correctly signed, dated and witnessed?
Incorrectly executed Wills are a surprisingly common problem, and it is important to note that a Will that is not signed, dated and witnessed according to the rules is not legally valid. If such a Will were challenged in court, it would be highly unlikely to be upheld as a valid record of your Last Will and Testament.
To ensure that your Will is legally valid, the following process must be followed. You and your two witnesses must be in the same room at the same time for the whole process of signing and witnessing your joint or even single Will. The witnesses must not be beneficiaries. If this does happen, it does not invalidate the entire Will, but it does prevent your witnesses from receiving any benefit from the Will. In other words, the gift that you had intended to leave them will ‘fail’. You must sign the Will first, using your usual signature, in the sight of both the witnesses. Then each witness must sign in your sight and in the sight of the other witness. The Will must be dated with the date that it is signed and witnessed. Please note also that a blind person cannot be a witness and no extra pages can be attached to your Will.
If you complete the Will in front of a solicitor or Will drafter with your witnesses present they will guide you accordingly and equally if you follow the details and easy to follow instructions you usually find with an online Will then all should be completed properly.
Is the Will unfair?
If when making a Will it contains instructions to distribute your estate in a way that is seen as unfair by your surviving loved ones, it is possible that it will be altered or challenged after your death. If a spouse or dependent has not been provided for in a simple Will they may apply to the courts for money from your estate, under the Inheritance (Provision for Family and Dependants) Act 1975.
Also where all beneficiaries agree that a change to your Will is required, they may execute a Deed of Variation, sometimes known as a Deed of Family Arrangement, within two years of your death.
Therefore to ensure that your wishes are carried out, it is advisable to make sure that your Will provides for all of your dependents, and if you do wish to exclude someone or leave any large legacies to others, you should take legal advice. For example the usual case is when one of your children is totally left out of the Will, which they then successfully challenge. The advice is that even if you do not want one of your children to benefit from your estate it is always best to include them with something, maybe a small amount of money but not a derisory amount.
So, to avoid your joint or single Will being deemed unlawful, being challenged by family members or a gift failing, the Will writing process should be understood or good instructions, advice and guidance sought in order to make a Last Will and Testament which is error free and unchallengeable.
The following are the most common causes of legal problems and disputes surrounding a Will. Such disputes can cause considerable distress and expense, and yet with careful attention, professional advice or following a strictly guided format that you might find with an internet or online Will, they can be avoided.
What if the Will is nowhere to be found?
Sometimes after a death, there is uncertainty over whether a Will was made, and where any Will that was made has been stored. If your loved ones don’t know whether you have made a Will, or they believe you’ve made a Will but don’t know where to find it, this may mean that they have to spend a lot of time searching for it, and if it is not found you will be deemed to have died ‘intestate’. If you die “intestate” then it could be the state that decides how your money and assets are disbursed.
It’s possible that an old Will is found rather than your Last Will & Testament and so when you make a Will, it is important to inform your executors that you have made a Will or amended your Will, and to let them know where it is stored, which makes it easy to locate and reduce hassle for executors when dealing with your Will and probate.
Has my will been correctly signed, dated and witnessed?
Incorrectly executed Wills are a surprisingly common problem, and it is important to note that a Will that is not signed, dated and witnessed according to the rules is not legally valid. If such a Will were challenged in court, it would be highly unlikely to be upheld as a valid record of your Last Will and Testament.
To ensure that your Will is legally valid, the following process must be followed. You and your two witnesses must be in the same room at the same time for the whole process of signing and witnessing your joint or even single Will. The witnesses must not be beneficiaries. If this does happen, it does not invalidate the entire Will, but it does prevent your witnesses from receiving any benefit from the Will. In other words, the gift that you had intended to leave them will ‘fail’. You must sign the Will first, using your usual signature, in the sight of both the witnesses. Then each witness must sign in your sight and in the sight of the other witness. The Will must be dated with the date that it is signed and witnessed. Please note also that a blind person cannot be a witness and no extra pages can be attached to your Will.
If you complete the Will in front of a solicitor or Will drafter with your witnesses present they will guide you accordingly and equally if you follow the details and easy to follow instructions you usually find with an online Will then all should be completed properly.
Is the Will unfair?
If when making a Will it contains instructions to distribute your estate in a way that is seen as unfair by your surviving loved ones, it is possible that it will be altered or challenged after your death. If a spouse or dependent has not been provided for in a simple Will they may apply to the courts for money from your estate, under the Inheritance (Provision for Family and Dependants) Act 1975.
Also where all beneficiaries agree that a change to your Will is required, they may execute a Deed of Variation, sometimes known as a Deed of Family Arrangement, within two years of your death.
Therefore to ensure that your wishes are carried out, it is advisable to make sure that your Will provides for all of your dependents, and if you do wish to exclude someone or leave any large legacies to others, you should take legal advice. For example the usual case is when one of your children is totally left out of the Will, which they then successfully challenge. The advice is that even if you do not want one of your children to benefit from your estate it is always best to include them with something, maybe a small amount of money but not a derisory amount.
So, to avoid your joint or single Will being deemed unlawful, being challenged by family members or a gift failing, the Will writing process should be understood or good instructions, advice and guidance sought in order to make a Last Will and Testament which is error free and unchallengeable.
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