The Importance of Having a Legally Binding Will
Posted on 9th January 2021 at 12:34
We tend to avoid thinking too much about a time when we will not be here. Making sure your estate and assets are given to your loved ones according to your wishes, however, is something that we should all consider sooner rather than later. If you need advice on making a Will call us on 01925 937070 - we'd be happy to talk you through the process. Alternatively Request a Call Back.
What is a Will?
A will is an official, legally binding document that sets out your exact wishes regarding your estate.
In a simple will, you may decide to give your assets to one or two people, perhaps a spouse or civil partner, a son or daughter. You may have one major asset such as a property to dispose of or you might have certain things that you want to give particular loved ones such as an item of jewellery.
In more complicated wills, there may be several assets that you want to go to specific persons. This could include a business you run or an overseas property.
In short, if you do not make your wishes clear in a legally binding will, that could mean your estate does not go to the person that you want it to or it may be contested.
A will have one or more executors identified – individuals who will be charged with carrying out your instructions. The will must also be witnessed and signed to make it legally binding.
What Are the Benefits of Making a Will?
There several things that can be considered in a will and they are all important:
You decide how your estate is distributed. This prevents family arguing over your assets and ensures that probate is decided relatively quickly and easily by your executor.
You decide, for example, who gets guardianship of young children if you are a single parent and you pass away before they reach the age of 18.
It avoids extending probate and causing distress for your loved ones. If you die intestate (without a will), then the issue of how your estate is settled goes through the courts. This can lead to delays and extra costs for your loved ones.
You can minimise the estate taxes that are due upon your death if your assets are above the current threshold.
You can also decide to make gifts or donations, for example, giving some of your estate to charity
When Should You Make a Will?
We often put off making a will. The truth is that none of us knows when we are going to die and it’s important to consider making a will as soon as possible.
The good news is that you can always change your will at a later date. It’s not written in stone and many people do update the document either because they want to leave their estate to someone else or they have additional property or assets that they want to distribute more widely.
The process for this is the same as when you make the initial will. The later will revokes the earlier one.
There really isn't any benefit in waiting to make a will until you are older.
The Dangers of a DIY Will
There are options to create what is called a DIY will. There are many of these on the market at the moment and they usually involve filling in a template and getting it signed and witnessed.
While this is a fairly cheap option, there are several issues that you need to consider. First of all, a will that is badly worded can be legally challenged and cause delays in settling your estate. It may even mean that your assets don’t go to the people you decided it should.
Secondly, there are many products, some of them very cheap, on the market but a cheap will may cost you more in the long run as there is no substitute for a consultation with a professional. LIke many things in life you get what you pay for.
Will writing services that are entirely online are also an option but they tend to be conducted entirely by email and have little in the way of personal contact. That means you can’t ensure that the individual you are dealing with is reputable and qualified.
The general advice is that, if you have little in the way of an estate to give away on your death and perhaps one beneficiary, a DIY will or will writing service can suffice but you need to choose the provider carefully. For anything even slightly more complicated, it’s best to go through a qualified and experienced solicitor if you want a legally binding document. Often even the simplest home-made wills can be ruled invalid due to the requirements of s9 of the Wills Act 1837 not being properly met. It is very easy to get it wrong.
How to Create a Legally Binding Will
You can write a will if you are over the age of 18. You also need to demonstrate that you have the mental capacity to do so. There are measures in place to protect older people who may be vulnerable but, in most cases, proving mental capacity involves simply sitting down with your solicitor and discussing your options. The solicitor can make a note on his or her file as evidence that in his or her view you have the mental capacity to make a will, so that if there is a later challenge to your will on these grounds such a challenge is less likely to succeed.
The first thing you will need to do is to think about what you want to achieve with your will. It can be quite difficult if you have collected assets over many years to realise what you have as part of your estate and which has value.
Next, you need to list your beneficiaries and what you want to give them. You might have a simple instruction such as the sale of your property and dividing the proceeds between certain members of your family. You may also want to give certain items with sentimental value or an emotional connection to certain individuals.
The next job is to nominate your executor or executors. These are the people who will be charged with settling your estate and making sure that your assets are divided according to your wishes.
There may be other areas to consider in your will if it is more complicated and your solicitor will go through these with you. These include if you have a business, own property abroad and whether you require inheritance tax planning measures to be in place. As property has increased in value it is not unusual for estates to exceed the inheritance tax threshold of £325,000.00 - after which inheritance tax is charged at 40%. Your solicitor will advise you on whether inheritance tax will apply and if it does how to minimise its impact on your estate. This could potentially save thousands of pounds.
The solicitor will draft your will and then go through it with you so that you understand all the legal jargon and are happy that it covers everything you intended. The next step is to have the will witnessed by two people who are not members of your family, are not your executors and are over the age of 18. Witnessing the will or 'Due execution' as it is known is a vitally important last step in the process. Often even the simplest home-made wills can be ruled invalid due to the requirements of s9 of the Wills Act 1837 not being properly met. It is very easy to get it wrong.
What do I need to do next?
Call us on 01925 937070 for a discussion about your requirements or request a call-back at a time to suit you
If you wish to go ahead after discussing your requirements, we will advise on costs.
We will prepare a draft Will for your approval and send it to you by email or by post. You can change your Will if any amendments are necessary at this stage.
Once you are happy with your Will we will post your Will to you and guide you through the process of signing it. Alternatively you can make an appointment to call into the office when we will be happy to witness your signature.
We will provide you with a prepaid envelope to return your signed Will to us for free storage. We will then send you a copy of your Will. Alternatively, if you wish you can keep the signed Will yourself.
DSM Legal will Create a Legally Binding Will
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