What is a Will?
A Will is a written record that says who you wish to look after your minor children, who you want to administer your your estate and who you want your home, money and possessions to go to when you die. As it is a very important document the law specifies what will be recognised as a legal and valid Will and, conversely, what won’t.
Who can make a Will?
In practice, the person making the Will – sometimes referred to as Testator (male) or Testatrix (female) – must:
- be 18 years of age or over;
- have testamentary capacity at the times of taking their instructions and signing, i.e. be of sound mind;
- know and understand the instructions they are giving you; know whom they should consider in their Will;
- make the Will of their own free choice;
- understand the contents and consequences of their Will;
- know they are signing a Will.
Who needs to make a Will?
EVERY adult needs to make a Will, regardless of their age. Even if they don’t have any children or significant assets they still need to make a Will. Without one significant delays and costs will occur. The Probate Court will appoint an executor for them (actually called a Personal Representative or Administrator). This may or may not be someone that they would have naturally been chosen and may in fact be a high street solicitor or bank that will charge (excessively) for their services – sometimes up to 8% of the gross estate. The consequences of not having a Will are covered by the FAQ “Who inherits if I don’t make a Will?” or under Laws of Intestacy.
When should I make a Will?
There’s no time like NOW! You should particularly consider writing or changing your Will when you get married, divorced, or change your personal relationship in any other way. Also at the birth of a child or grandchild, and at the death of a close family member. You may wish to review your Will if your assets have considerably changed or now have concerns (which you didn’t have when you drafted your current Will) that your children or other key beneficiaries may not receive their intended inheritance because your partner or spouse [re-]married or needed long term care, say.
What type of Will is appropriate?
The following table gives an indication as to which Will is appropriate for each case.
|Standard Single Will||
|Standard Double Will||
|Double Will incorporating trust(s)||
Note that a double Will is not appropriate for two people who happen to just live in the same property (e.g. friends or siblings); two single Wills should be used in this case.
Who inherits if I don’t make a Will?
The intestate estate will be distributed according to rules dating back to 1925 (in England & Wales) and recently updated on 1st October 2014. They depend on marital status, whether there are children and the surviving immediate family. They are too complicated to summarise within this FAQ so please refer to the Laws of Intestacy section of this website under Wills.
Can’t I write my own Will?
Yes, of course you can save a few pounds this way! But is it worth it? The Will is probably the most important financial document that you will ever own – it is the cornerstone of all financial planning. Could you guarantee it being legally proven, legally signed and covering every eventuality? What comeback do your beneficiaries have if it goes wrong? It definitely won’t cover estate and inheritance tax planning. If you could not guarantee such things, you need a professional service to help.
Don’t I need a solicitor to write my Will?
No. For most family situations a Will writing and estate planning company, such as Cornerstone Wills, with the expertise and experience of its consultants often provides a better and more comprehensive service than a solicitor is able to provide. We are members of STEP and the Society of Will Writers and TAS. All our consultants are highly qualified through both organisations and regularly attend training sessions with far more CPD hours gained than is required.
Whom should I appoint as my Executor?
A husband would normally name his wife, and a wife her husband, either on their own or together with grown up child/ren or another close family member or family friend. If the Will is complex (e.g. with trusts) or the estate is fairly complex or if inheritance tax is due on the estate it is generally advisable to appoint a professional executor acting jointly with your choice(s). Always ask for and obtain permission from the individual concerned, before naming them as your executor.
If you appoint a professional executor, they will charge for their service. For more on this, see our section on Executors within the “Wills” menu; Cornerstone Wills can be appointed to act solely or jointly with others that you trust or as a final choice to provide longevity to the Will.
Whom should I appoint as Guardians for my children?
Caring for your children up to the age of eighteen years is quite a responsibility and should be given only to those who are in a position to do so. A good choice would be a family member or maybe a very close friend. Parents might be a good choice in the short-term, but perhaps not the longer term so alternate choices should be considered. The location of your candidate might affect your choice, depending on the age of your child/ren and the impact any move might have on their education, especially if your candidate guardian lives abroad. This matter needs careful consideration and discussion with all those involved. Only name someone with his or her prior permission and agreement.
Who can and who can’t witness my Will?
Two people over the age of eighteen years will be required to witness your Will. All three of you must be together when signing. Your witnesses do not have to know the contents of your Will, they are only there to witness that you have signed your Will in their presence.
An executor, trustee and/or guardian can act as a witness.
However, no one mentioned in your Will as a beneficiary can act as witnesses, neither can their spouses.
What if I have no family or close friends?
In such a case you could consider naming your favourite charity or charities as your main beneficiary/ies. If your estate will be subject to Inheritance Tax when you die then this could reduce the tax bill!
Why should I consider using the services of Cornerstone Wills?
Because we are professional enough to be entrusted with the important task of writing your Will, and are human enough to care. Find out more on the Why Cornerstone Wills? page.
Can I change a Will?
Yes, but only by signing a document called a Codicil. This must be prepared, signed and executed in a particular way. You do not need a Codicil if you or any person named in your Will changes their address. A Codicil is only useful where there’s minor changes to your Will.
At Cornerstone Wills we recommend that a new Will is drafted in all circumstances rather than drafting a Codicil as there is greater opportunity to lose one or both of the Will or Codicil. Also, there is greater risk that Codicils can be conveniently destroyed, e.g. by a disaffected beneficiary!
Can I cancel my Will?
You can cancel your Will by making a new Will, or by physically destroying it. Note that it must be destroyed by yourself – no one can do it on your behalf, unless at your direction and in your presence. Note that marriage will automatically cancel your Will unless it is drafted in contemplation of marriage.
Does marriage or divorce affect my Will?
A Will is almost always automatically voided if you get married after you have made it – unless it is drawn up in contemplation of marriage. If you get divorced after you have made it, any provisions in favour of your ex-spouse will be cancelled unless the Will states otherwise and your ex-spouse cannot act as your Executor/Trustee. It is essential that you consider writing a new Will if there are major changes to your marital circumstances.
What happens if I leave someone out of my Will?
If you have not properly provided for any of your dependants who are unable to maintain themselves, or if you have not been fair to your spouse (or an ex-spouse who has not remarried), then under an act of law called the Inheritance (Provision for Family & Dependents) Act 1975 the Court can alter your Will. Any reasons for leaving someone out should, therefore, be given in a separate letter of wishes. The Court will then consider these reasons although it will not be bound by them.
What are Executors?
Executors are simply the people appointed in your Will to carry out your instructions. Executors bring together all your assets, pay your debts and any gifts of money, transfer any gifts or personal belongings and deal with the remainder – your Residuary Estate – in accordance with your Will. Often non-professional Executors will ask a professional organisation such as Cornerstone Wills or a solicitor to do some or all of the work for them.
What are Trustees?
Trustees are the people appointed in your Will to look after your property or interests until your Will dictates when the asset(s) can pass onto your chosen beneficiaries. The trust might be simple, e.g. one governing the age of inheritance for your children or complex, e.g. one giving a life interest on your home or estate to your spouse to protect from remarriage or long term care. Executors and Trustees are often (but not necessarily) the same people.
How many Executors and Trustees can I appoint?
You can appoint as many Executors and Trustees as you like within your Will but when the time comes a maximum of only four can act.
You can appoint one Executor acting solely but it is recommended to appoint alternative Executors in case your first choice decides not to take the position or dies before you.
With Trustees, it is generally recommended that a minimum of two are appointed to act jointly; this is due to legislation relating to land transactions including the sale of property.
Do Executors get paid?
Only if the Will says so. Most Wills provide that most professional executors should be paid their normal fees. They would not act otherwise. A solicitor’s fees could be 4% or more of the value of the Estate plus an hourly rate. A bank’s fees would be considerably higher. Why not consider Cornerstone’s own Estate Administration services?
Should I appoint Guardians?
If you have children under the age of 18 who may be left with no parents, we strongly recommend you should appoint suitable Guardian(s). The appointment of Guardians allows you to decide who should be responsible for your children’s welfare. You should also give consideration as to the age of the Guardians, consider their current relationship with your children or whether they have the same views on education, and so on. Guardians can also be the Executors and/or Trustees.
What happens to property in joint names?
Husbands and wives usually, but not always, own property together as “joint tenants”. This means that when one of them dies the other one automatically becomes the owner of the property, regardless of the Will of the first to dies stipulates. Therefore, a joint tenant cannot make a gift in their Will of their ‘share’ of the property.
Non-spouses (whether cohabiting partners, friends or family) typically, but not always, own property together as “tenants in common”. This means that when one of them dies, the interest in the property forms part of the Estate. It also means that a “tenant in common” can make a gift in a Will of his or her share of the property. A joint tenancy can easily be converted into a tenancy in common by registering the change with the appropriate land registry office for the property, which we can organise for you as part of the service, if appropriate to your Will.
What about Inheritance Tax?
If the value of your estate is more than £325,000 after payment of your debts and any gifts to charity, Inheritance Tax (IHT) may be payable at 40% on the value over this amount. For married couples or couples in a Civil Partnership the tax exemption could possibly be doubled to £650,000. Further to this tax-free allowance, from April 2017 a new allowance on the home has been introduced, starting from £100,000, the rules of which are far too complicated to summarise within this FAQ. We can advise you on ways of reducing or removing the impact of Inheritance Tax. For more information see the sections under the Inheritance Tax menu.
What is a gift made “free of tax”?
A gift is free of tax when any Inheritance Tax (IHT), if it is payable, is to be paid out of your Residuary Estate and not to be taken out of the gift or otherwise paid by the recipient. Specific gifts of items or of money within Wills are generally made free of IHT, unless it is or you feel it is appropriate to specify otherwise. All gifts to charities are exempt from IHT. See the IHT Exemptions page.
After I have signed my Will, can I leave with it a list of gifts of personal belongings?
You can do this if you have made provision for this is your Will, but do not attach the list to your Will.
What does it mean if I give someone a “life interest” in my Estate?
If, say, you wish to ensure that your partner is adequately provided for but feel you have a duty towards, say, children of an earlier marriage, then you may wish to consider giving your partner a “life interest” in your Estate; your Will will include a life interest trust of your share in a property and/or the whole estate. This restricts the partner’s inheritance to the income only of your monetary assets and the use of your home. On the death of your partner the capital will pass to whoever you have specified in your Will, e.g. your children. You should, however, bear in mind that unless the Estate is fairly large, the income may be insufficient to support your partner. Alternatively, a more flexible life interest could be given to your partner that doesn’t restrict access to the capital. Obviously, the capital can be spent leaving little or nothing to pass to children when your partner dies. When considering a gift of a life interest, it is very important to remember that the recipient does not own the property in the trust and cannot dispose of it in his or her Will. However, also note that when the person to whom a life interest has been given dies, the value of the assets in the life interest trust will be included in their taxable estate.
What should I do with my Will?
You should leave it in a safe place. Your Executors will need the original when you die. We can arrange for your Will to be stored in our fireproof safes in our offices in Camberley.
What is “Residue”?
The residue is everything that remains after any gifts have been made and after payment of all debts, taxes and expenses. The residue should not be itemised as you do not know what will be in your estate when you die. You can simply decide what proportion each beneficiary is to receive, if you are naming more than one. You may wish to leave the residue to your spouse and then for it to pass on to your children. If perhaps you do not wish your children to benefit in equal shares you can state what proportion each child is to receive. If you are single, or do not have any children you may wish to leave the residue to other named beneficiaries – such as siblings or nephews and nieces.
What is Inheritance Tax?
Rather then explain within the FAQs, it is probably best to view our pages on Inheritance tax. Please click the Inheritance Tax menu and select “Introduction to Inheritance Tax”.
How can I save Inheritance Tax?
There are many ways of saving Inheritance Tax, either in your lifetime or through your Will. Some solutions may involve lifetime gifting or require trusts set up either today or through your Will. Rather then explain within the FAQs, it is probably best to view our pages on Inheritance tax. Please click the Inheritance Tax menu and select “Introduction to Inheritance Tax”. Within that page there will a summary of some solutions with links to other pages in the website for greater detail.
Lasting Powers of Attorney (LPAs)
What is an LPA?
The Lasting Power of Attorney (LPA) is an authority for a person or persons (the “Attorney(s)”) to act on behalf of the person giving the authority (the “Donor”). There are two types of LPA: one for financial affairs and the other for personal welfare.
Property and Financial Affairs LPA – empowers the Attorney(s) to look after the financial and/or business affairs of the Donor. The Attorney can use the Donor’s money to pay bills, buy and sell shares, and even sell the Donor’s house. He/she has limited power to make gifts with the Donor’s money or give away the Donor’s belongings. It does not cover matters such as whether or not medical treatment should be given or withheld or creating a new Will for the Donor.
Personal Welfare LPA – empowers the Attorney(s) to make decisions such as where the donor lives and whether or not medical treatment should be given or withheld.
Why do I need an LPA?
Mental disability (and indeed physical disability) can affect anyone regardless of age and is often the result of a stroke, an accident or an illness. Whatever the cause, the effects of mental disability are the same – the person is left incapable of dealing with the financial and other matters that most of us take for granted. If you have Critical Illness cover it is highly recommended that an LPA be prepared at the same time as you may receive a large sum of money but not be in a position to have access to it, for example if it is paid into an account that requires your signature. You may also be unable to manage your affairs for reasons other than mental or physical disability, for example having an accident abroad or having a prolonged stay in hospital.
What if I don’t have an LPA?
Without an LPA, if incapacity or disability does occur then the only way that the affairs of such a person can be dealt with is by applying to the Court of Protection for the appointment of a deputy. This will normally be a court official or sometimes a near relative, solicitor or accountant who will receive the person’s income, pay the debts and deal with other day-to-day matters. Your views on your treatment will not be known. Any views that you may have expressed verbally in the past to a family member cannot be taken into account. Appointing a deputy can be an expensive and time consuming business. In addition there are annual fees payable to the Court of Protection for the auditing of accounts and other matters. There could also be annual visits from court representatives to ensure that the Donor is being looked after in a satisfactory manner.
What is a Living Will?
A Living Will, or Advance Medical Directive, is a document that enables you to specify treatment that you wish to accept or refuse should you be in the unfortunate position of not being able to do so yourself. This is not a legal document but it is generally recognised by the British Medical Association (BMA). Other information can be recorded such as a health care proxy, who should look after your children or pets, and any other information that you feel is pertinent. It often accompanies a Lasting Power of Attorney giving guidance to the Attorney(s) that you have appointed to look after your health and welfare.
I am unmarried. Can my partner make decisions on my behalf?
No. Normally only next of kin will be consulted. The Living Will and the Lasting Power of Attorney are, therefore, very important documents for unmarried couples.
Who decides if I am unable to make my own decisions?
This can be specified in the document itself but is normally two independent medical practitioners.
What if I change my mind?
You can simply destroy the document. If your decisions remain valid it is recommended that you re-confirm your intentions by signing the document and having your signature witnessed.
Change of Name by Deed Poll
What do you get when you change your name by Deed Poll?
A document that is accepted as proof of name change by all government departments and other institutions and bodies.
Can I get my Birth Certificate changed?
No, birth certificates cannot be changed, (although there are very limited and time restricted options to correct errors soon after birth). Errors on birth certificates are a common reason for changing names by deed poll.
Can I now get a passport in the new name?
Yes, just send the Deed Poll document with your application form.
Are all organisations obliged to now accept my new name?
Yes, just show them your Deed Poll.
Can a child’s name be changed without their consent?
Yes if they are under 16 years old. Between the ages of 16 and 18 they must agree.
Can a child’s father object to a name change?
If you were married when the child was born, fathers have a joint parental responsibility and must agree to the change. (If the father cannot be found the name can be changed but it must be done via a solicitor.) If you were not married when the child was born, then the mother alone can change the family name, UNLESS the father has parental responsibility or there is a court restriction in place.
Does the change of Family Name by Deed Poll have to be registered?
No. In the past, registration was required, but this is no longer the case.
After the Deed Poll is activated, can I continue to use my previous name?
No. You revoke the option to use your previous name.
Can I change my name to any one I want?
Provided no fraud or deception is involved and the name is not offensive, you can choose any name you want. We reserve the right to refuse to issue a Change of Name by Deed Poll if we consider the chosen name could be offensive or used for fraud or deception.
Are photocopies of the Deed Poll acceptable?
Only if a solicitor certifies the copies. A cheaper option is to have a number of identically signed and witnessed Deed Polls. Overall, this is a quicker and cheaper option.