Ten important questions about Wills you should know the answers to

We spoke with Katie Gibson-Green, Senior Associate in our Private Client Advisory Team, on our recent Levelling With podcast episode all about Wills. We asked Katie why you should have a Will, when you should get one, what should be included, and much more. 

When should I consider getting a Will? 

I think people are under the misconception that you just have to be elderly or unwell to consider getting a Will. But in reality, that’s a fallacy, because as long as you’re over the age of 18 and have capacity, you can make a Will.  

There are various reasons why a Will should be made and there’s lots of circumstances that happen throughout your life that would prompt getting or updating a Will. As soon as you own any form of asset, it doesn’t have to just be property, getting a Will is something we advise. If you own a car, have savings, have inherited a family heirloom, or own a pet, these are all things that you might want to consider including.  

Of course, there are some bigger life events that might prompt you getting a Will such as owning property, either individually or with a partner, getting married or having children.  

Why should I get a Will so early on in my life? 

People always think that they’re too young to make a Will and that unless they’re 90 years old it’s not something to have to consider.  

The significance of your wishes and what you want to happen if you do die is really important, making sure that your assets go to the person or people that you want them to go to and ensure that those important to you are looked after. 

The biggest hurdle is that people don’t like talking about death or the thought of dying. Death is one of the only things guaranteed in life and whilst we all hope that will be when we’re elderly, old and grey and have lived a very full life, sadly we all know that isn’t the case for everyone. 

Another reason people put it off is simply because they have busy lives, and they don’t want to necessarily get involved in a process that they’ve perceived to be complicated. The reality is that making a Will shouldn’t be complicated or stressful. 

What is the process of getting a Will? 

There are different options, that of course all have different costs. I would advise against just getting a blanket Will off the internet and instead approaching a reputable provider.  

Essentially, once you give instructions to the solicitor, they will provide you with draft documents in accordance with the conversation you have had. Once you’re happy and the Will is signed, you can forget about it in the most part until you have a life event such as marriage or divorce that might require a new or updated Will. 

Some clients will come to us with a very clear idea of what their assets are, how they should be dealt with, what other stipulations they want included and it’s a simple process. On the other hand we have people that come to us and say, “I need a Will, what do I do?” We then sit down with them and look through all their assets and come up with a plan together. There’s no right or wrong way, but having a think about it prior to engaging a solicitor is worthwhile. 

What provisions can I include in my Will for my children? 

Along with stating what you would like left to your children, the biggest thing to cover here, specifically regarding minor children, is stating who you would like to look after them if you were no longer here. This is called a guardianship provision and is very important.   

Legally, you don’t have to involve the person listed in the process of creating the Will and they don’t have to give consent either. However, if you are wanting someone to look after your children for you, I think it’s important that you have a discussion and make sure they’re happy with that as it could be a major lifestyle change. 

Another consideration with children is if they are still young when you die, you might not want them to have full access to what you are leaving them until they’re slightly older. You can put their share in a trust and stipulate they can have access when they’re a certain age that is determined by you. 

What is a Power of Attorney? 

A Lasting Power of Attorney (LPA) is separate to your Will but usually comes up in the same conversation. The Lasting Power of Attorney will cover your affairs whilst you’re alive but have lost the capacity to be able to make decisions regarding your finances or medical care. When you pass away, your LPA ceases to be effective and that’s when your Will takes effect, and your executors will step in and take over that role. A property and financial LPA can also assist you when you have capacity but may not be able to act yourself – for instance, if a wet ink signature is needed on a document urgently and you are abroad, your attorney can sign that document on your behalf, at your instruction.  

Do I need a new Will after getting married, having children or getting divorced? 

It depends on the circumstances, as there are a couple of anomalies in law, which I’m sure is not surprising to hear. One example is if you have a Will and then you get married, unless that Will was made in expectation of your marriage to your spouse, your Will is automatically revoked so you would need a new Will, if you did not wish the intestacy provisions to apply.  

However, and this is where lots of people get caught out, the same doesn’t apply upon divorce. From a legal viewpoint if you divorce, your ex will be treated as if they have pre-deceased you and any substitution provisions in the Will will take effect.   

What happens if I die without a Will? 

This is what is referred to as intestacy. Effectively what that means is there’s a very strict order in who will inherit your assets.  If you did without a Will and with a spouse/civil partner but no children, then that person will receive the entire estate.  However, there is a common assumption that this is also the case where you are married or in a civil partnership with children, but this is not the case.  Instead, the spouse/civil partner receives a set amount (currently £322,000) and personal belongings but the remainder is then split equally between your spouse and the children. What we can see happening here is that if the house is worth more than what the spouse is entitled to, they end up co-owning the property with the children no matter their age. There are lots of complexities if this happens so it’s really important to have a Will. 

Additionally, if you are not married or in a civil partnership then the intestacy provisions do not provide any entitlement to a cohabittee.   

What is the executor of a Will? 

Executors have a really important role. If you’re making a Will, you will name someone or a few individuals to act in the administration of your estate and these are the executors. The role of these individuals is to collect in all of your assets, pay off any liabilities, and distribute your assets in accordance with the terms of your Will. Effectively, they are the people that are implementing your wishes, whether that’s making sure that the guardianship clauses under the Will come into effect, making sure your funeral wishes are implemented or distributing your property and cash in the right way. It’s important that the people you appoint as executors are people that you trust to make the right decisions and to implement your wishes.  

Executors can be anybody provided they’re over 18 and have the capacity to act as an executor. Beneficiaries can also be executors; they don’t have to be independent.  

Do I need a new Will every time I make a change, or can my existing Will be updated? 

It really depends on how many changes you need to make. Generally, if there are a lot of changes then we recommend a new Will is completed. Your old Will is valid until your new Will is signed and witnessed. Once the new Will is signed the old Will is automatically revoked, but we tend to recommend that once you’ve got a new Will in place the old one should be destroyed. This ensures there’s no confusion if the old Will is found and there being an assumption it’s the most current one. If there’s only minor changes to make, like updating an executor, then you could complete what’s known as a codicil, which is effectively a supplementary document that sits alongside the existing Will. 

How do I make sure my Will is enforceable? 

There are lots of different caveats that I could mention here, but my key advice is just to get a reputable solicitor to do the Will for you. Try to avoid do-it-yourself kits. Your solicitor will make sure that everything you want to happen is written and documented in the correct way.  

A Will is also only valid in England and Wales if it is signed by you in the presence of two independent witnesses. The two individuals must see you sign the document, and they must then sign and witness the document for it to be valid. Your beneficiaries cannot also be your witnesses. 

For more insight and discussion, listen to Katie’s full podcast episode here.