The first question many of our clients ask us is “Why do I need a Will?” The assumption made is that our assets will pass to our loved ones anyway. For some people, the gamble of not completing a Will might well pay off, but that will depend upon the assets that they own, their circumstances and who they want the funds to pass to.
For those that would prefer not to take such a high-risk strategy (relying on the intestacy rules) they should certainly make sure that a valid Will is put in place to ensure that their hard-earned assets pass to those that they want to benefit. It should also be noted that writing a Will involves more than simply choosing who to give your money to. So, what should you consider when drafting or updating one?
UNDER WHICH JURISDICTION SHOULD THE WILL BE COMPLETED?
Under the law of England and Wales, the general rule is that you should complete a Will in accordance with the law of the jurisdiction in which you are domiciled. Equally, however, advice should be taken in any other country in which land and property (bricks and mortar) is held as it may be necessary to complete a separate Will there.
For most of our UK clients, being domiciled in the UK, they will need at the very least a UK Will to cover their worldwide assets. This is also true for many of our overseas clients if they have retained their UK domicile of origin.
There are certainly exceptions to this rule. For example, the EU Succession Regulation effected back in August 2015, allows British nationals to choose the law of their nationality to apply to their estate in other EU member states (excluding Denmark and Ireland). Should, therefore, an English national own a property in France, they would be able to declare in their Will that the law of England and Wales should apply rather than the forced heirship rules applied by France.
Executors deal with the administration of your estate. They will need to value your assets, pay any debts/taxes, arrange for the transfer or sale of the assets and distribute to your beneficiaries. Being an Executor can be complicated and time-consuming, so it’s important to choose people who you believe are not only capable to carry out this duty but must be someone you can trust implicitly.
It’s also possible to appoint a professional executor, either in a sole capacity or maybe jointly with other personal executors; this is a role which The Fry Group has been fulfilling for many years. Indeed, for numerous clients The Fry Group is appointed to cover the scenario of the chosen personal executors not being able or willing to act – they are safe in the knowledge that someone will be able to step into the breach.
If your children are under 18, you should use your Will to appoint guardians for them in the event of your death. You should also speak to your chosen guardian and make sure that they are happy to take on the role. If you don’t choose someone yourself, then the courts will decide who should raise them.
If you prefer, you can appoint more than one guardian or appoint alternative guardians – those that will step in should your first choice guardians be unable to act.
For our overseas clients, consideration should be given to appointing local temporary guardians who can initially look after your children until your chosen guardians arrive.
Discussing your thoughts on your funeral with family members is probably not at the top of your “to-do” list, so laying these down in your Will is essential. Bear in mind that they will not be legally binding, but a few pointers can give your loved ones some guidance which could be a source of comfort.
How much detail you include is very much a personal choice. Remember though that the more you include, the higher the chance that you will change those wishes as time goes on, resulting in the completion (and cost) of completing a new Will. We would suggest that you certainly state whether you wish to be cremated or buried and whether you wish your body to be used for medical research. Alternatively, of course, you may wish to not have a funeral at all – or maybe have a specific type of funeral such as a humanist or woodland funeral, in mind.
We would suggest that your wishes in your Will are kept simple but maybe include the finer details e.g. scattering of ashes/place of burial; hymns/songs to be played etc in a separate letter that is kept with your original Will. This letter can be updated without needing to change your Will.
The likelihood is that your family will take care of your pets, but you might wish to include a clause confirming to whom they should pass, they are strictly an asset after all. Depending upon your circumstances this could include an animal sanctuary.
You may wish to leave personal items e.g. jewellery/cars etc to specific individuals. These can be itemised in your Will or alternatively a clause can be included passing your chattels to your executors to distribute in accordance with a letter you complete during your lifetime. The advantage of this approach is that you can change the letter rather than having to go to the cost of completing a new Will if you change your mind over a particular item or beneficiary.
Before the residue is distributed to your principal beneficiaries, you may wish to leave smaller cash amounts to individuals or charities.
This is the portion of your estate that remains after all expenses, debts and specific legacies have been paid. You can leave it to one person or split it between several, giving each one a named share. The important thing to remember is that if your estate ends up being smaller than you had anticipated, the residual amount may be far less than you wanted to give. Those receiving specific and money legacies will still receive their distribution first, and those sharing the residuary estate may be left with very little.
The residue doesn’t have to pass absolutely to your beneficiaries; it could pass into a Trust of some form. This might be advisable should your chosen beneficiaries be vulnerable e.g. minor children; beneficiaries who may be mentally or physically impaired.
The use of a Trust should also be considered where clients have children from a previous marriage or where there is some doubt about the beneficiary’s financial standing or marriage. In those circumstances, the use of a Trust can be used to protect the funds.
If you would like to discuss your Will in more detail, please do not hesitate to get in touch.
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