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Tina Price-Johnson is a Specialist Paralegal in Wills, Probate and Estate Administration, and through her work she has come across distressing situations caused by a decedent having either an invalid will or no will at all. This can cause major problems for the loved ones left to deal with the aftermath whilst grieving their loss. Based on her experiences, these are her recommedations how to write a will.
If you have children, have bought a house, or are in a relationship which is not legally recognised*, then it is absolutely vital that you have a will in place to ensure your estate passes to whom you would wish. In order for the will to be valid, there are some things that you must include.
Essential Components of a Valid Will
You must state that the will you are drafting supercedes all other wills and testamentary documents that you may have made prior to the date the will is signed.
If you have children you should state who you would wish to appoint as guardian after the death of the person who has parental responsibility alongside you. This may be their co-biological parent or adoptive parent. You cannot supercede a person who has legal parental responsibility if they should survive you. The guardianship is legally binding and grants the person so named legal parental responsibility for the children. You can also include pets in this clause. For pets, though, it just gives guidance as to whom you would wish to look after your fur (or feather or scale) babies!
You must include a signature clause which specifically states that the will was signed by you in the presence of two witnesses (one if you are resident in Scotland) who after seeing you sign, then signed and gave their names, addresses and occupations. These witnesses cannot be beneficiaries or in a legally recognised binding relationship with a beneficiary (i.e. spouse or civil partner).
You don’t need these sections for the will to be valid, but these are my recommedations.
Appoint two EXECUTORS to act in your estate. These are the people who have legal responsibility for any debts or credits due from or to your estate, and they are bound by the instruction. They can, however, choose to step down upon provision of a letter to the probate registry when application is made for the Grant of Probate. If there is a chance that anyone under the age of 18 will inherit through your will, then two executors must be appointed to act. You should therefore appoint a substitute executor (making three in total) to act if either of the first two is unable to fulfil the role. You should really pick someone sensible, and talk to them about the role beforehand.
When you are giving your estate away, if you mention something specific like a bank account or amount of money, an item of jewellery, or shares, you should include wording in the clause to say “if this gift is not a part of my estate as at the date of my death then this gift will fail.” If you don’t include this sort of wording, and the gift is not in your estate, then your executors will have to create a like-for-like gift from your estate funds in order to meet the clause in your will. Unnecessarily complicated and onerous, especially when one assumes your executors are going to be grieving your death!
Allow for what might happen if the first beneficiaries named in your will die before you. Say if this should happen, then [insert name and address of substitute beneficiary] shall receive the gift. You may want to say “if [any shall OR he/she] predeceases me leaving children alive at the date of my death, then those children will receive that share that would have been their parent’s share in equal shares.”
If a child might inherit, say whether you want their parent or guardian to look after their bequest until they reach the age of 18, or if you would want the executors to fulfil this role. It is up to you; how responsible do you feel the parent of the child is? What if it wasn’t that parent, but their co-parent (not your child, for example, but their partner/ex-partner) who would be looking after that gift?
If you make specific gifts, then make sure the final gift clause gives away your residuary estate. Use the words “I give to [insert name and address of beneficiary/ies] all my residuary estate whatsoever nature and wheresoever situate absolutely.” If more than one beneficiary, add “in equal shares” before “absolutely”. If not in equal share, specify the shares to be given i.e. “thirty percent (30%) of” before the words “my residuary estate”.
The will you create covers all your estate no matter where in the world it is, but different countries may have different rules for inheritance. For example, if you own property in France then you must, by law, gift it to your children if you have any, and in equal shares. If you are in any doubt about what you own, instruct a solicitor or a will specialist to talk you through your estate and the best way to plan your will to meet your gift wishes.
A will written along these guidelines is valid across the world. The country in which you are domiciled is the one whose inheritance tax rules will be applied to your estate.
Do I Need a Lawyer?
Legally you don’t need a lawyer to draw up a will. You can use a blank piece of paper as long as you include the statements in the first section. If your family situation is complicated, or you have a lot of assets and property, then it might be advisable to have a chat with a lawyer to ensure you have covered everything. If you have property in a foreign country, it is strongly advisable that you check the legal requirements for inheritance in that country
What Happens if You Don’t Write a Will?
A will is an important document to protect you and your loved ones. If you are in a relationship which is not recognised legally, then anything you may own in your sole name will not go to your partner, but to your next-of-kin under intestacy.
If you are in a legally recognised relationship and don’t have a will, your partner is only entitled to £325,000-worth of your estate plus half of whatever else you may leave. The rest passes under intestacy, and given property prices at the moment this could cause serious problems for your partner.
So please, do make a will, and do it soon. For your peace of mind, if nothing else!
- Relationships that are not legally recognised include an Islamic marriage or a romantic partnership not legitimised in the UK by a registry office ceremony. Christian church ceremonies include the registry office part when the couple sneak off with the celebrant to sign the documentation – this is not a religious action; it is the one secular part of the ceremony and is the only part which creates the legally binding set-up. If in doubt, consult with a lawyer to find out if your relationship is legally recognised.