As Solicitors, we too often see the difficulties faced by families when Wills are drafted incorrectly or worse, when they are not valid at all. Whilst nothing can replace thorough legal advice, knowing the most common pitfalls when making a Will could help ensure your wishes are carried out when you pass away.
Putting it off…
Research indicates that a huge 59% of UK adults have not written a Will. Whilst it is tempting to put off what is, inevitably, a very difficult topic to think about, this is rarely beneficial to your loved ones.
If you die without a legally valid Will, the intestacy rules set out where your Estate will pass. Often, this is not to the person or people you would have chosen to inherit your Estate.
Not only do those who pass away without a Will forfeit the ability to decide where their Estate will pass, often it can be very difficult for those left behind to know where to turn. Without a Will directing who should administer an Estate when someone dies, it can be very tough for family and friends to work out who should deal with matters at all.
You must sign your Will in the presence of two witnesses. Those witnesses must be aged over 18 and should not be beneficiaries of your Estate, or married to a beneficiary of your Estate. You and your witnesses should all be present to sign your Will at the same time.
Where a Will has not been properly witnessed, it may not be legally valid.
Updating your Will
It is crucial to review your Will regularly, ideally once every year. Not only may your personal circumstances shift, the laws relating to your Estate and tax may also change.
In certain instances, a change in your circumstances may void your Will entirely. For example, a Will is considered void when a party marries or enters into a civil partnership, unless there wording to the contrary within their Will.
Changing your Will
Whilst it is very important to review your Will regularly, you cannot change your Will simply by handwriting on the existing document. If circumstances change and your Will requires amendment, you should either prepare a codicil or an entirely new Will.
Including your whole Estate
On occasion, Wills are made which do not specify where all of a person’s assets are to pass. Quite often this is the case where someone names their assets individually in their Will and some things are forgotten.
If this is the case, those assets not dealt with in the Will pass under the rules of intestacy. This can mean those assets do not pass to the person or people you would have chosen.
Being too specific
Similarly to the above, and contrary to what you may think, being too specific in your Will can also be problematic.
Whilst ensuring all your assets are disposed of by your Will is crucial, being too specific can cause problems, particularly if your circumstances change. For example, leaving a blue Ford Mondeo car to a beneficiary, which you subsequently sell, may result in that beneficiary receiving nothing at all; whereas leaving a choice of any car you own when you pass away to that beneficiary, may well be a better way of ensuring your wishes are met.
There is a fine balance when it comes to the detail to be included within your Will. It is simply not practical for any of us to list every item or asset we own, and if we did we would have to update our Wills every week!
It is common for Estates to be divided into particular percentages or shares within a Will. From time to time, mathematical errors result in confusion as to where an Estate will pass, with for example 3 beneficiaries receiving 30% of an Estate each.
If leaving your Estate in percentage shares, make sure 100% of your Estate (no more and no less) is disposed of.
Just in case provisions
Often testators prepare Wills on the assumption they will pass away before their beneficiaries and fail to state what should happen if this is not the case. Unfortunately, we cannot predict the future so it is important you consider what should happen to your assets if a beneficiary has predeceased you.
Choosing the wrong Executors
Your chosen Executor or Executors will be responsible for dealing with your Estate when you pass away. This can include a variety of tasks, from selling your car and clearing your house to applying for probate.
Whilst it is important to appoint someone your trust to deal with your Estate, it is also crucial to consider who will be best placed to deal with matters. Not only do you need to consider who may be familiar with your affairs, but also whether your Executors will work well together. Personality clashes between executors can, on occasion, bring the administration of an Estate to a halt.
We have all heard the story of the man writing a Will on the back of a beer mat and whilst we cannot stress the importance of making a Will enough, making a “DIY” will comes with significant risks.
Not only is every mistake listed here possible when making a DIY will, failing to seek proper legal advice means you may not leave your Estate in the most tax efficient manner. The involvement of a legal professional in the preparation of a Will can also assist if an Estate is contested. Solicitors keep detailed and thorough notes of client appointments and correspondence which can be considered if a Will is later challenged.
At Ellisons our specialist Private Client Solicitors are able to help you plan for your future. By instructing our respected Wills, Trusts and Probate Solicitors in Essex and Suffolk you can plan ahead making sure your family is provided for in the future. Contact the Ellisons’ specialist Private Client Solicitors today on 01206 764477 or email us at [email protected].