You may recall a few weeks back now that I wrote this post about a Google Hangout with Saga Legal and Writing a Will and offered you the opportunity to ask some questions to Legal expert, Emma Myers. Well, some of you came forward with your queries and I am pleased to say that Emma was very helpful.
Here are the questions and answers raised at the Hangout. I hope you will find them useful.
‘Things you didn’t know, you didn’t know about Wills’
Q. What are the key things you need to include in your Will? I.e. what happens to children under the age of 18, trust funds for money, transfer of home?
The most important things to consider are:
- Your Executors & Trustees – who you want to deal with your estate (belongings, property etc.) after you pass away
- Your appointed guardians – who you want to be entrusted to care for your children in the event that your passing away leaves them without a parent
- What specific items you wish to leave to any individuals
- Who you wish to benefit from everything left in your estate (the residue) – this can be put into a trust to protect against a variety of issues.
Q. If you don’t have a Will at the time of death, what happens with your possessions and money?
If you die without a Will (intestate) then all of your possessions will pass in accordance with Intestacy Law and may end up passing to someone you hadn’t intended to benefit. If you are married or in a civil partnership at the time of your death then the estate (only up to a certain amount) will pass to the partner but if not then the estate will pass down the bloodline. If there are no remaining potential beneficiaries down the bloodline then the residue can potentially pass to the state.
Q. If you’re living with a partner, are they automatically considered your legal partner if you die?
If you were to die without a Will then the law would only recognise a married or civil partner as a partner for the purposes of intestacy. Co-habiting partners would not benefit under the intestacy laws.
Q. Do you have to name people specifically in your Will, or can you just say ‘my partner’?
You could just say my partner, but this could lead to potential confusion and difficulty for your executors when administering your estate. If it was not clear and evident who your partner was at the time of your death then this could cause the Will to fail. It is important to use full titles wherever possible.
Q. How often should you update your Will?
You should update your Will whenever you wish to change the issues highlighted above:
- I.e. who you want to be an executor (in the event the executors chosen are unable to act or you no longer wish for them to act)
- Who you want to be a guardian
- What you wish to happen to the residue of your estate
However it is important to keep your Will under review, especially if something changes in your circumstances.
Q. Is a foreign Will legally binding in the UK?
This will depend on the country where the Will was written and advice should be taken. However it is possible for a Will from another country to be proved in England and Wales.
Q. Who can obtain a grant of Probate?
Anyone over 18, and appointed an Executor, can obtain a grant of probate.
Q. What is the difference between a trustee and executor?
Executors are those persons appointed as representatives of your estate after your death to collect the details of your assets, ensure all debts, tax, etc. are paid from your estate, and then distribute the remaining assets according to your Will.
Trustees are generally responsible for holding and administering any monies from your estate held in trust for certain beneficiaries.
Often they are the same people, and which one they are acting as depends on what stage of the administration they are at.
Q. I have no money or assets but I understand that you can make a Will stating who will have guardianship of your children. Is that true? Is it costly? How would I go about it?
Guardianship does need to be done in a Will, but this is a good place to deal with it as the requirements for signing a Will are sufficient to make a guardianship appointment valid. Although you may feel that you have nothing to leave in a Will, it is still advisable to prepare one as you will need someone to deal with your affairs – i.e. finalise any tax position, settle any debts or rental payments and arrange your funeral.
Q. What sort of things do you need to gather together to make a Will?
- Full names and addresses of any executors or beneficiaries
- A full review of your estate so you know what you have to give away
- Full descriptions of any gifts which you wish to leave
- Details of any business assets
Q. I live in rented accommodation and have no savings – do I need to make a Will?
- You may have certain items which you wish to give people (jewellery, watches, art etc.)
- You may wish to appoint a guardian
- If you have a specific person/people who you wish to benefit from your residuary estate, then you could draft a Will and it would still apply if you were to obtain property/savings in the future
Q. My Mum is in charge of my finances if something happens to me (as mentioned in my insurance paperwork). I have no Will, so if I die, how would this affect my son? Is my Mother obliged to give him the money or can she take it all? What are the legal implications?
In this circumstance, if you died unmarried or without a civil partner then the estate would be held on trust for your son (and any other children you subsequently have) until he were to reach 18. The trustee of the money would be whomever was appointed the legal guardian of your son after your death. If this is to be your mother, then she will hold the funds on trust for your son. The money could only be accessed prior to him reaching 18, if it was deemed to be for his benefit.
If however the insurance policy is written in Trust then it would depend on the wording of the Trust as to who the beneficiary is.
Q. Where is the best place to keep a Will?
A safe, secure location such as:
- A secure vault, similar to one offered for free to Saga Will customers
- Banks (though a charge and conditions will apply)
- Probate registry
- At home in a fire proof/ waterproof safe (as long as the executors know its whereabouts)
I hope that this answers at least some of your questions but, if you would like to learn more, then take a look at Will Writing and Estate Planning over on the Saga Legal Website.
Disclaimer: Please note that this post is written in partnership with Saga Legal.