Making A Will

Why Should I Make a Will?

When someone dies without leaving a Will, this is known as dying Intestate.

When there is no Will, the deceased person has not nominated anyone to act as Executors and they have missed the opportunity to choose who should receive their assets on their death.

In this situation, the rules of Intestacy state who is entitled to receive the assets of the deceased person. Who the Beneficiaries are will depend on what relatives the deceased person left behind and how valuable their assets were when they died.

They also confirm that whoever is entitled to those assets (the Beneficiaries) are also entitled to administer the Estate.

Without a Will, any assets passing to a child of the deceased will be given to them when they reach 18 years of age. If you want to defer their entitlement to say 21 or later you should make a Will.

There is also no provision under the rules of Intestacy for partners or cohabitees. If you are in a long term relationship and you would like to provide for your partner then you must make a Will to avoid the upset that this may cause your loved ones.

What Should I Consider before making a Will?

1. Who should be my Executors

Executors are responsible for administering your estate.

They can also be beneficiaries under your Will. They must be adults (at least 18 years of age), and they can be your spouse, children, other family members, friends or professionals.

It is important that you consult with your choice of Executors to determine whether they would be willing to act – they are not obliged to.

When appointing Executors it is important to choose someone who has the time and skills to fulfil the role and to cope with the responsibility. Although anyone can be appointed as an Executor, certain people (such as a minor, a bankrupt or a convicted criminal) cannot take out a Grant of Representation.

Can a bankrupt act as an executor?
A person who is insolvent or an undischarged bankrupt can act as an Executor or act in the estate of another (who died intestate). If it is considered inappropriate for that person to act, they can renounce. If the bankrupt Executor refuses to renounce, an application to the Court can be made to have him passed over so that another can act.

At Crombie Wilkinson we have a great deal of experience and expertise in acting as Executors and Trustees. It may be possible for the Partners of our firm to act as your Executors and you can discuss this with us.

2. Do you need to appoint Guardians

Guardians take parental responsibility for any of your children who are under 18 years of age at the time of your death. Guardians can also be Executors. Again you should consult with your choice of guardian as they are not obliged to act.

3. Legacies

These can take two forms – cash gifts or gifts of specific items

Cash gifts can be made to any person or charity. They can be made in whatever sum you feel is appropriate.

You can state that the gifts only apply in certain circumstances, for example if and when the beneficiary reaches a certain age or if they act as Executor. You can also state that the legacy is only payable at certain times, for example if you die after your spouse.

Gifts of specific items would include items such as jewellery, houses, specific shares and investments, other personal items like furniture etc. They can be made subject to the same limitations as cash gifts.

4. Residuary Gift

This is the remainder of your estate if you have made gifts of cash or specific items, or your entire estate if you have not made any other gifts. This can be given to family, friends or charity.

The Will should make it clear what happens to the rest of your assets both if you die before the named beneficiaries or if they have died before you – who would you want to receive the assets in those circumstances?

You can include age restrictions and other provisions called trusts so that the beneficiaries do not become absolutely entitled to those assets immediately or at all.

5. Funeral wishes

Although not legally binding it is possible to express a wish in your Will about your funeral arrangements. This can be as simple as expressing a wish to be buried or cremated or more complex wishes.

This information does not constitute legal advice in its own right. Always seek personal advice direct from a Solicitor before you take any action.

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