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The top 10 considerations when making a will

Writing a WillWorried about making a will? Karen Bacon offers tips on what to bear in mind.

Having taken the important step of deciding to make a will, you have overcome the first hurdle. Next, you will need to consider what you want to achieve by making one. 

Anyone who is over 18 and of sound mind can make a will. These are the most important considerations before you do:

1) Assets

What are your assets, ie savings, investments and property owned by you, and what is their value? When making a will, you should make a list of your assets and their values, as there may be some financial or tax planning which can be carried out as part of the will-making process.

2) Beneficiaries

Who do you want to benefit by your will? For many people, this will seem easy – their spouse or partner first, and then their children – but there will often be more to think about, such as:

  • Could their spouse remarry and disinherit their children?
  • Can they cut out estranged children, and what rights do they have?
  • Who should benefit if spouse and children die together in an accident?
  • What happens if there are children from previous relationships?

3) Executors, trustees and guardians

Who do you choose to carry out the terms of your will? Spouse and children may seem to be the obvious choice if the children are adults – but if your children do not all get on together, you should consider the appointment of an impartial or professional executor. You may also want to consider a substitute executor if you're only appointing one executor in the first instance. 

Executors will also usually act as trustees, for example, if there are children who are minors, the trustees will manage their inheritance until they reach the age at which they will inherit – this is a responsible and potentially long-term commitment.

If you have young children, you have the difficult task of naming guardians who will look after your children’s physical welfare until they are 18. It is not necessary for the guardians and the trustees to be the same people, but they should be able to get on with each other, as the trustees should ensure that the guardians are not left out of pocket as a result of caring for your children.

Both parents should discuss and be in agreement about their choice of guardians for minor children in both of their wills. This will prevent future conflict in the event of both parents dying simultaneously.

4) Foreign property

If you own foreign property, you will need advice as to any ‘forced heirship’ rules, which may prevent you from leaving your property to the beneficiaries of your choice, and whether these can be circumvented. You may need to make a foreign will, particularly in non-EU countries. It is important that your executors have full details of all your foreign assets, and of any lawyers abroad who you have previously used, as this will help to avoid problems after your death.

5) The family business

If you have built up a family business and want to ensure its continuation, there are difficult decisions to be made, particularly where some family members are involved in the business and others are not.

This can be a particularly acute problem for businesses such as farms, which have a high capital value, but which often don’t produce sufficient income to support more than one family. It’s important to start discussing succession to the family business at an early stage, so that those who may not receive equal value under the will understand the reasoning behind it, and don’t feel unfairly treated. 

6) Division of your estate

The starting point for most parents is fairness, however this does not always mean an equal division of their estate between children.

You should consider whether a child has benefited from lifetime gifts, and whether these are to be brought into account when you die; whether a child is more deserving than another due to personal circumstances such as disability, illness or financial hardship; or whether a child has been particularly supportive towards you. It’s helpful to prepare a note for your children, explaining your reasons for any apparent unfair treatment.

Those without close family may wish to consider benefiting friends and charities

7) Claims against your estate

You should consider whether there is anyone who might make a claim against your estate after your death. Certain people, including spouses and civil partners, former spouses and civil partners who have not remarried, co-habitees, children and those treated as children of the family, and others who have been maintained by you, may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975.

If you have made a promise to someone that they have relied on to their detriment, they may have a claim under the doctrine of ‘proprietory estoppel’. An example could be a child who worked without pay in the family business on the expectation of inheriting it.

8) Inheritance tax/care fees planning

Couples with a house and modest savings may wish to incorporate provisions in their wills to preserve part of the value of their home from being used to pay their surviving spouse or partner’s care fees after their death.

There may be IHT planning opportunities using charity, agricultural and business property relief; and couples who are not married or in a civil partnership do not benefit from the IHT transferable nil rate band, so may wish to consider saving tax by use of nil rate discretionary trusts in their wills.

9) Putting your affairs in order

Making a will is not something that should be done in isolation. It’s an ideal time to put your affairs in order in the following ways:

  • Check property ownership and location of title deeds for unregistered property.
  • Put in place arrangements for passing on undrawn private pensions, SSASs and SIPPs.
  • Review investments and life insurance etc.
  • Put lasting powers of attorney in place for management of your affairs during your lifetime, should you become unable to make decisions for yourself.

10) Making your will

As can tell, making a good will isn’t always straightforward. There is no substitute for having your will professionally drawn by a specialist lawyer – preferably with the Society of Trust and Estate Practitioners (STEP) qualification – who will be able to guide you through the difficult decisions you may have to make. 

Once you've made your will, it should be reviewed every 3 to 5 years, or whenever there is a major change of circumstance in a your life, such as marriage or the birth of children.

About the author

Karen Bacon is head of the wills, probate and tax team at Steeles Law solicitors.

See also: How to choose a probate solicitor

Publication date: 11 January 2017