When the golden age of retirement arrives, your time is finally your own. If you haven’t made one already, making a Will is not necessarily at the top of your ‘to do list’.
You’re ready to live your life –– not anticipate its demise.
However, before you embark on your well-earned retirement, making a Will should be a priority. Without a Will, the rules of intestacy dictate who inherits your estate and the result may well be contrary to your wishes.
As there are various legal formalities that must be followed to ensure that your Will is valid, it is advisable to seek legal advice and assistance.
Without an expert’s help, there is a risk that you could make a mistake that could cause problems for your family and friends after your death.
Here is a list of some of the main items to consider before you see your legal advisor.
Executors and Trustees
Executors are responsible for dealing with your affairs and implementing the terms of your Will. They may also be appointed as trustees of your assets whilst your affairs are being sorted out.
They will need to collect all the assets of the estate, deal with the paperwork and pay any debts, taxes, funeral expenses and administration costs out of the funds in your estate.
They will then be responsible for transferring any legacies to the beneficiaries named in your Will.
Take care in deciding who to appoint as executors and trustees as this job involves a great deal of responsibility.
They can be friends, family members, or a professional, such as your legal advisor.
Be sure to talk to your chosen candidates in advance to see if they are willing to take on the responsibility.
While you only need to appoint one person, we recommend that you appoint more than one in case one should predecease you or be unwilling or unable to act.
Minor Children
If you have minor children, you should consider who you want to look after them in the event that something happens to you.
You can appoint guardians for the children in your Will.
Again, you should talk to your chosen individuals before signing your Will as the role comes with considerable responsibility.
You should also consider making your choice known to other family members in order to minimize disputes.
Specific Gifts of Money or Property
Consider whether you wish to gift money or specific items to people and prepare a list of such gifts, together with the names of the intended recipients, for your legal advisor.
Residuary Estate
The residuary estate is what is left of your assets and property after any liabilities have been paid off and specific gifts distributed.
Carefully consider who is to receive this. If you have minor children and they are to benefit, the funds will need to be held on trust for them by your executors/trustees until the children reach the age of majority.
Death Duty
There are exemptions and relief available for certain types of gifts and property.
You should make a list of your assets and their values for your legal advisor so that they can advise you as to the most tax efficient way to deal with your assets.
Signing the Will
A Will is not valid until it has been signed and witnessed according to certain rules.
Your legal advisor will ensure that the required procedures are followed, which include but are not limited to:
• Witnesses should be eighteen years old or over.
• Witnesses are likely to be traceable if required when you die.
• Witnesses are capable of understanding what they are doing.
• Witnesses and their spouses are not beneficiaries of the Will.
Where to Store Your Original Will
It is important that your Will is stored in a safe place, preferably fireproof.
Your legal advisor should usually be able to offer you safe storage of your Will, either for free or for a nominal charge.
You should ensure that your executors or relatives know the location.
Keeping your Will current
You should review your Will at least every five years and more frequently if you experience any major life change such as getting separated, married or divorced, having a child, moving house or acquiring new assets.
With the help of your legal adviser, minor changes can be dealt with by making codicils to your existing Will, but it is best to deal with any major changes by drawing up a new Will.
Costs
Charges for drawing up a Will can vary between legal advisors and will depend on the experience and knowledge of the legal advisor; and how complicated your Will may be.
While cost is an important consideration, it is just as important to find a legal advisor who is approachable and whose advice you understand and trust.
Nobody likes to think about or ponder on death –– especially their own, but the importance of having a valid Will cannot be expressed enough.
It is one of the most important documents you will ever sign, and represents financial peace of mind to those you leave behind. n
Darren Donnithorne is a Senior Associate and the Head of the Property and Estate Planning Team at Marshall Diel & Myers Limited. Stephanie Matthews is an Associate of the Chartered Institute of Legal Executives who works with the Property and Estate Planning group.
This article is for general guidance only. It should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.
