After the success of our Make A Will webinars, we wanted to share some of the brilliant questions asked by our community in relation to creating and adjusting a Will. We hope that these questions will help to guide and reassure you during the process of creating a will; if you would like to find out more about creating a will and supporting the Hospice please feel free to reach out directly.
The answers to these questions have very kindly been checked by our corporate partner, FBC Manby-Bowdler who are supporting us through our Bequeathed online will-writing service which allows you to create your own basic will in the comfort of your own home. For more information about this click here
Can I make a joint Will with my spouse/civil partner/cohabiting partner?
Each person has to make their own individual Will. Spouses/civil partners/cohabiting partners are able to make Wills at the same time but each individual will need to sign their own Will.
Spouses/civil partners/cohabiting couples can make mirrored Wills. This is the most common form of Will for more than one person. These are virtually identical Wills that contain the same wishes. For example, on first death, the estate will pass to the survivor and on second death, the estate will pass to the children in equal shares.
Sometimes, it is important to spouses/civil partners/partners that after the first one dies, the survivor cannot change their Will if they go on to marry someone else or form another relationship. Mutual Wills can be made in this instance. Up until the point that the first person dies, the Wills can be changed. However, after the first one dies, the survivor’s Will cannot be changed. Mutual Wills are inadvisable and rarely drafted these days. Much the same can be achieved through the use of Trusts in a Will and they give greater flexibility.
Whilst there are Mirror Wills and Mutual Wills, there is no law that says that spouses/civil partners/cohabiting couples need to make the same Wills. Each person has their own testamentary freedom to put whatever wishes they have into their own Will.
Can I change my Will at any time?
Yes. Your Will should be regularly reviewed every 5 years and if you have a change of circumstances such as a beneficiary dying, it is vitally important that you review your Will with your solicitor to ensure your Will is still fit for purpose and carries out your wishes.
However, as outlined above, if you have made a Mutual Will and your spouse/civil partner/cohabiting partner has died, then you will be unable to change your Will.
If you get married, you will need to make a new Will as unless there is a special ‘contemplation of marriage clause’ in your Will, your Will is revoked and the wishes contained in your Will cannot be carried out.
Other examples of a change of circumstances that may prompt you to change your Will are: –
- If you have had another child;
- If you now have grandchildren;
- If you have inherited some money or property from another person’s estate;
- If your financial circumstances have changed;
- If you have recently connected with a charity and wish to remember them in your Will
Where is my Will stored? Do I keep it or does my Solicitor? I’m worried about losing it!
It is advisable that you keep your original Will in a safe place; preferably somewhere outside your home. If you made a Will with a firm of solicitors, they will store it safely and securely. You should tell the Executors of the Will where the original Will is so that they can deal with matters swiftly when you die.
If your Will is held together by a binder or ribbon that is damaged or if the printed Will becomes creased or marked this can cause problems when it comes to proving your Will as part of applying for a Grant of Probate and further evidence as to the plight and condition of the Will may be required to obtain the Grant of Probate.
The Probate Registry can be particularly strict with this as they want to ensure that the Will is valid and it is in the same condition as when you signed it, so if there are any staple marks, stains, creases or rips this can cause issues that your Executors will need to address.
You do not have to store your Will with a solicitor, you can keep it yourself if you feel like it is safe at home, and it could be stored in a lockbox or safe. However, if you do not have a secure location for your Will in your home, there is the possibility that the Will could get damaged or even destroyed in some cases (for example, if there is a fire).
When a firm of solicitors hold the original Will in safe storage, once they are notified of your death by your Executors, have been provided with a Death Certificate and have the requisite identification documents from your Executors, then they can release the original Will.
What happens if the Solicitor storing my Will goes out of business?
Unfortunately, solicitors’ firms do close. This could be for a variety of reasons ranging from the owners retiring to the firm being forcibly shut down by the Regulation Authority. Sometimes, firms merge with other firms or are taken over by other firms.
You should be notified if there is a merger or takeover to let you know where your Will is stored and given the option to keep it there or move it to somewhere else.
If a firm has been closed by the Solicitors Regulation Authority, another firm of solicitors is appointed to deal with the closure and again, you will be notified as to where your Will is and to take instructions as to what you want to do with it.
If you have any doubts as to the location of your Will following the closure of a firm of solicitors, you should contact the Solicitors Regulation Authority and they will check their records.
Many law firms are registered with a company called Certainty The National Will Register. If the firm where your Will is stored is registered with Certainty The National Will Register and it goes out of business or, if you have any doubt whether you have made a Will, this company will conduct a search using the testator’s name (the name of the person) and the result will be able to show the name of the firm where the Will is stored, if you have one, and will provide you with the firm’s contact details.
It is advised if you have made a Will that you tell your executors where that Will is stored, and that you also keep a copy of your Will in a safe place. Then, if your Will is lost, there is a copy available which can, in exceptional circumstances, be used by your Executors to make the application to obtain a Grant of Probate. It is advisable that if you cannot find your original Will or you do not know its location that you simply make a new Will.
Can I use a Will to protect against care fees?
Yes, it possible to do some care planning with your Will. This is a conversation that is best had with your solicitor who can advise you as to all of the options available to you.
Are there any tax benefits for leaving a gift to charity in my Will?
Yes. Inheritance Tax is a tax that is applied to your estate when you die and is paid to the HM Revenue & Customs. Your Executors must pay Inheritance Tax if the value of your estate exceeds the nil rate band which is currently £325,000.00. There is an additional nil rate band called the Residence Nil Rate Band which is currently £175,000.00 and is available if you own a property and are passing your property to direct descendants (i.e. children and grandchildren). If you are in a married couple or a civil partnership, you also benefit from the transferable nil rate band so any unused nil rate bands from the first person to die can be transferred to the estate of the survivor which means that potentially £1 million could be available free of Inheritance Tax. Inheritance Tax is 40% of the value of your estate which exceeds the available nil rate bands .
Any gift that you leave to charity in a Will is free of Inheritance Tax. The other advantage is that if your estate is taxable, if you decide you wish to leave a gift to a charity in your Will, as long as this gift is a minimum of 10% of the value of your estate, the rate of Inheritance Tax is reduced to 36% in recognition of your charitable donation.
When assessing whether your estate is likely to be taxable, it is worth calculating what your estate is worth now to include your savings, property, shares or investments to name a few.
A gift to charity does not need to be for Inheritance Tax savings purposes, it can simply be to remember a charity you support and to continue to help them financially after you have died.
Can my funeral wishes be changed by a family member – or will they definitely be adhered to?
Funeral wishes can be included in your Will, whether that be dress codes, hymns or family traditions. These wishes will be used as a guide by your family to help take away the emotional distress of planning a funeral during the bereavement. The wishes are not legally binding.
These wishes will be adhered to as best as possible, but there may be extenuating circumstances that mean that some wishes are not able to go ahead. For example, if you included as a funeral wish that you wanted to be buried in a specific cemetery, but there was no space left, an alternative would be arranged.
So funeral wishes will be adhered to where possible, but may be adjusted when certain wishes are not possible.
To download our Frequently Asked Questions, click here.
We hope that these questions will help and guide you through your process of making a Will – if you would like to watch our Make A Will webinars and hear in more depth about the process of making a Will please click here to head over to our Facebook page!