Making a Will
There are many good reasons for choosing to make a Will. People often assume that, without a Will, any property they own will simply go to the remaining members of their families.
This is not always the case. By having a solicitor prepare a Will for you, you can decide for yourself who is entitled to benefit from your Will.
Most of your instructions can be provided in your initial consultation, however, we draw your attention to the following:
Are you known by any other names?
Some people do not use the names that appear on their birth certificate. For example, someone whose name is Margaret may prefer the name Maggie, and so she may never use her real name. This may create problems if assets or property are held in the other name and mention is made of the fact in the Will.
Who do I want to leave my property to?
The persons who receive property under your Will are called ‘beneficiaries’. You can nominate any person/s or entity you wish to be your beneficiary.
When naming beneficiaries, please follow these guidelines:
Organisations
Beneficiaries need not be people – they can be organisations, charities, schools, etc. If you would like to leave some or all of your property to a particular body or institution, we need to have the accurate name, of the organisation.
Adult Beneficiaries
If the beneficiaries are adults make a list that shows the full name, address and occupation of each adult beneficiary.
Children Beneficiaries
If the beneficiaries are children make a list that shows the full name, address and date of birth, of each children beneficiary.
We will also need to know the age at which the children are to receive their share of the property. If a large sum of money is involved, for example, you might want to have the child wait until he or she is a certain age before the money is distributed.
What if a Beneficiary dies before I do?
A beneficiary named in your Will may die before you do. It is important, therefore, that you make provision for someone else to take that beneficiary’s share in case this happens. Your alternatives are:
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The share of the deceased beneficiary can be spread amongst the other beneficiaries, eg:
- You leave your property to Adam, Bill, Clare and David (one quarter share each).
Bill passes away before you do.
The property then goes to Adam, Clare and David (one third share each).
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The share of the deceased beneficiary can go only to a particular beneficiary, eg:
- You leave your property to Adam, Bill, Clare and David (one quarter share each).
Bill passes away before you do.
Adam is to get Bill’s share, so that –
¨ Clare gets one quarter share
¨ David gets one quarter share
¨ Adam gets half share
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The share of the deceased beneficiary can go to a different person altogether, eg:
- You leave your property to Adam, Bill, Clare and David (one quarter share each).
Bill passes away before you do.
Bill’s share of the property is to go to Edward, so that –
¨ Adam gets one quarter share
¨ Clare gets one quarter share
¨ David gets one quarter share
¨ Edward gets one quarter share
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The share of the deceased beneficiary is to go to his/her children, if any, eg:
- You leave your property to Adam, Bill, Clare and David (one quarter share each).
Bill passes away before you do.
Bill has two children.
Bill’s share goes to his children, so that -
¨ Adam gets one quarter share
¨ Clare gets one quarter share
¨ David gets one quarter share
¨ Bill’s children get Bill’s quarter (ie one eighth share each).
The Executor of the Will is the person who will be entrusted to distribute the property according to the instructions in your Will. In many cases, where property is left to children, the Executor also acts as Trustee, taking care of the property until such time as the children become entitled to their share in the estate.
When nominating an Executor, please follow these guidelines:
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The position of Executor is an important one and should be given only to someone who you feel you can trust. Think carefully about who you would like to fill this position.
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You can nominate more than one person to be Executor.
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It is important that you obtain the person’s consent before nominating them as Executor. As the position involves some responsibility, not everyone will wish to be nominated.
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It is not necessary that you nominate a relative or friend as your Executor/Trustee. You may prefer to nominate a trustee company to fill the position. If so, we will need to know the full name of the trustee company you choose.
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We will need the Executor’s full name, address and occupation.
Powers of Executors
You should provide instructions to the Executor:
For example, it may be necessary to hold property until children turn 18 years old. Think carefully about what you would like do with the property during this period.
For example, if the property is a house, is it to be rented during that time, with the rents being held on trust for the children? If you wish, you can leave these sorts of decisions to the Executor.
Is there anything that you definitely do not want the Executor to do under the Will? For example, you may not want the family home sold. This wish can be expressed in your Will.
You will need to consider whether the Executor will be allowed to use funds from the estate to help pay for the education and living expenses of your children. It may even be necessary in such a case to sell the property. Decide whether this is acceptable to you?
What if the Executor dies before I do?
As in the case of beneficiaries, an Executor may pass away before you do. It is not wise to nominate someone who would be unlikely to outlive you. Make sure you nominate a ‘stand by’ Executor in case the person you choose to be Executor dies before you do. Remember to seek the ‘stand by’ Executor’s consent.
Who will take care of my children?
If you have young children, their welfare will usually be the responsibility of the surviving parent. However, in case your husband or wife dies before you do, you should appoint a Guardian in your Will. A Guardian is someone who will take care of your children and make all of the decisions that you normally would as a parent in your place.
When selecting a Guardian, please follow these guidelines:
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As with Executors, this position is an important one and you should only choose someone you can trust. You will also need to discuss with that person whether he/she is willing to take on the role to be a Guardian.
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You can name more than one person to be a Guardian. You might like to choose a married couple, for example.
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We will need the full name, address and occupation of any Guardian you select.
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As with Executors, you will need to choose a ‘back up’ Guardian in case the person/s you choose do not outlive you.
If you decide that money from your estate can go towards the living expenses and education of your child, the Guardian will receive this money.
What if I am a co-owner of property?
Often property is owned jointly, what many people do not release is that there are two different types of co-ownership.
You can be either a joint tenant or a tenant in common. You will need to know which of these you are. Checking the title deeds will often provide this information. Alternatively we can do a title search to obtain this information.
The main difference between the two types of co-owners is that a joint tenant cannot leave his or her share of the property to anyone else. This is because joint tenants fall under a rule of law called ‘survivorship’. Under this rule, each co-owner of the property is seen as owning all of the property rather than owning only a share in it. This means that one co-owner does not have a separate share that he or she can leave behind to someone in a Will. Instead, when a co-owner dies, his or her ownership of the property is then owned by the surviving co-owners.
In the end, when there is only one survivor, that survivor owns the entire property. If you are a joint tenant, we will explain this situation to you.
Do I need to describe my property?
If you want to leave particular items to certain people, it may be necessary for you to describe that property.
For example, if you want a certain piece of jewellery to go to someone, we will need to know which piece of jewellery it is. The description must be detailed enough to identify that piece from other jewellery owned, for example ‘my gold ring with three rubies in it’.
Your solicitor will keep your Will in safe custody for you if you wish, at no charge.
Changes to your Will (Codicil)
You are free to alter your Will at any time and as often as you wish.
Your circumstances can change significantly over time so it is advisable to review your Will regularly.
On marriage, your current Will is automatically revoked unless it states that it is made in contemplation of a specific marriage. If you divorce, your divorced spouse is not entitled to any assets under your Will unless you specify otherwise.
You may also wish to change your Will if any of the following occur:
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Birth of child or grandchildren
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Death of a beneficiary or executor
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Financial Changes
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Home or property changes.
If you wish to alter your Will seek the guidance of your solicitor.
