Wednesday, 24 February 2010
Writing Your Own Will Part II
Writing your own will part II
If you insist on writing your own will against all legal advice, or you are just interested in understanding wills (perhaps so that you can get to grips with the opaque monstrosity that your solicitor has recently prepared on your behalf) this article will help you.
Structure of wills
Professionally drafted wills are usually constructed along similar lines.
The structure that is generally adopted is as follows:
(1) The heading:
This identifies who you are, that the document you are making is a will, and that you cancel any previous wills you have made.
Example:
“I, Terence Parkes of 43 Maypole Avenue Hillside Bramptown BR1 1JX declare this to be my last will and I revoke all previous wills”
(2) Appointment of Executors and Trustees
The executors are the individuals responsible for carrying out the wishes expressed in your will. To some extent, a will can be seen as a set of instructions to your executors. It is important to appoint people who can be relied upon to act responsibly and quickly when the time comes.
The job of the executors includes selling your property, liquidating your assets, paying your funeral expenses, settling your debts, paying any legal fees associated with your estate, then paying what is left to the beneficiaries named in your will in the amounts that you have specified they should receive.
The trustees are the individuals who look after assets long-term where the assets are not due to be given to someone for a long period (e.g., where the assets are given to someone on attaining the age of 18 when that person is only 5 years old; or where the assets are subject to some kind of restriction – e.g., when the Testator has said that he gives a sum of £100,000 to pay the income to X for life and on the death of X the £100,000 is given to Y).
The trustees are also the individuals who look after the money from the estate when the executors have done everything expected of them as executors except for paying the beneficiaries. A technical point you should be aware of is that this means that your executors at some stage almost always become trustees for a brief period before they pay the beneficiaries.
Example:
“I appoint Peter Forbes and Sydney Corkindale (hereinafter referred to as “my Trustees”) to be the executors and trustees of this my will; and the expression “my Trustees” shall include the Trustees for the time being whether original substituted or added.”
(3) Specific Legacies
Specific legacies are gifts of specific items of property. These gifts do not occur in all wills by any means but when they do they often follow the clause appointing executors and trustees.
Example:
“I give my Rolex watch to my son Simon free of all tax”
(4) Pecuniary Legacies
Pecuniary legacies are gifts of set sums of money. Again, they do not occur in all wills, but when they do they often follow the specific legacies clause or the clause appointing executors and trustees.
Example:
“I give the sum of £5,000 to my daughter Samantha free of all tax”
(5) Clause to pay funeral etc
This is a clause which to some extent states the obvious, and it occurs in almost all wills. It usually says something to the effect that your executors can sell all your property, cash in your investments etc , pay your funeral expenses and debts and any legacies you have given and what is left (known as the “residue”) is to be held by your trustees.
Example:
“I give all my property to my trustees with the discretion to sell or retain it as part of my estate for the time being on trust to pay my funeral expenses my debts testamentary and administration expenses and legacies and to hold what remains ( ‘my residuary estate’) on the following trusts”
(6) Gift of residue/residuary estate
This clause wraps up the will as far as giving away what you own is concerned. It gives away your net estate – that is everything left over after the gifts and expenses dealt with in numbered points 3, 4 and 5 above have been paid and gifted.
Example:
“I give my residuary estate to such of my children as survive me and if more than one in equal shares”
(7) Administrative Provisions
Will drafters often consider that the general law relating to trusts does not give executors and trustees adequate powers to administer estates and trusts; or that the general law will make the administration awkward and unwieldy (and to some extent they are correct)and they usually insert additional powers and provisions to help the executors and trustees.
Example:
“If my Trustees have a discretion to pay money to a minor under the terms of a trust made by my will they may exercise that discretion by making payment to the parent or guardian of the minor or to the minor himself or herself if the minor is aged sixteen or over and the receipt of the minor or his or her parent or guardian shall be an effective discharge to my Trustees who shall not be under any obligation to check how the payment is used. ”
(8) Attestation Clause
A will must be signed in accordance with certain legal formalities in order to be valid and legally effective. (Without going into detail on the point, the requirement to execute it in accordance with the legal formalities can be satisfied in many different ways). The attestation clause is inserted in a will to create the legal presumption that it has been executed in accordance with those legal formalities.
Example:
“Signed by the Testator as his last will in the presence of us witnesses present at the same time who have also signed the will in the presence of the Testator and of each other”
Disclaimer
All explanations of the law and legal practice given in this document are intended as no more than outlines for the prospective legal client. They do not replace the need to take professional legal advice. It is recommended that professional legal advice is taken by anyone thinking about acting on any of the issues mentioned in this document.
Wills Probate and More Ltd and the author do not accept responsibility for loss occasioned to any person acting, or failing to act, as a result of the content of this document.
For further information contact:
Wills Probate and More, 83 Birkby Lodge Road, Birkby, Huddersfield HD2 2BL
Tel: 01484 419029 (land line)
Tel: 07773 890979 (Mobile)
Wills, Probate and More is a trading name of Wills, Probate & More Ltd reg co no: 6792641 Wills, Probate & More Ltd is a Member of the Institute of Professional Willwriters (IPW) and complies with the IPW Code of Practice.
© Andrew Komarnyckyj 2010
Wednesday, 24 February 2010
Writing Your Own Will
The first step to writing your own will should be to give serious thought about what you are trying to achieve in a Will.
There are some general guidelines that may assist you to form your thoughts.
Guidelines
For parents of young children, the priority is probably to ensure that something is in place which appoints one or more individuals to look after the children and makes money available to assist those people – but ultimately gives the family wealth to the children when they are old enough to make use of it in a responsible manner. How old is that? This is a question to which the law does not supply an answer. The law supplies a minimum age – which is 18. The maximum is up to you. So you could state in your will that your children should inherit from you at the age of 21 if you wish, or 25, or even 50!
However, if you state an age greater than 18, the result may not be what you expect for reasons that will be explained in a future Elert in this series.
Parents of older children do not have to worry about guardians and may be simply concerened to ensure that their money, property and assets are distributed in a fair manner. They may want to ensure that there are executors named in the will who are close to home and in a position to deal with their affairs when the time comes. They may take the view if their children get on that their children would make the best executors.
If there is a child in the family who is in receipt of means-tested benefits an inheritance might prevent that person from continuing to receive those benefits – so in such cases the parents might want to put a share of their money in trust for that child in such a way that it can be accessed to help him, but will not curtail his entitlement to benefits.
Grandparents sometimes consider giving a share of their estates to their grandchildren. If the family is wealthy this can be part of a tax planning exercise – assets given directly to the third generation may avoid part of the tax burden that they would have borne had they passed down through the intervening second generation.
Sometimes there is someone who it is desirable to exclude from a will. If that person is someone who would inherit a share of the family money through the rules of intestacy, a will naming other people as the beneficiaries is essential.
Taking advice
If your plans are very simple, you might be tempted to buy a DIY will from a shop and make the will yourself. This is probably not a good idea, even if your requirements are very simple and you are competent to do the job.
There is always the chance that something could go wrong no matter how much care you take. If that should happen and you have made a DIY will, a disappointed beneficiary will have no means of redress.
The best advice is therefore to write down what you intend for your will, and visit someone legally qualified to prepare your will who carries indemnity insurance. If you give your chosen lawyer your instructions and retain a copy yourself, this is a good starting point to getting a will that accurately reflects your wishes and that may offer the scope, if incorrectly drafted, for a disappointed beneficiary to receive some form of compensation.
More free information
Probatelaw Disclaimer
All readers are always advised to take legal advice from a qualified professional before embarking on any course of action with legal implications. Andrew Komarnyckyj, Probate law, and Wills, Probate and more Ltd do not accept responsibility for the consequences of anyone taking action, or failing to act, on anything whatsoever as a result of reading this Elert.
© Andrew Komarnyckyj 2009
