Issues to consider

Issues to consider

Contents

Before you begin the process of creating your Will, there are a number of matters you should consider carefully.

Value of your estate

It is important to know whether or not your estate is worth more than the tax-free allowance, or 'nil rate band', which is £325,000 for the 2016/17 tax year.

Who would you like to appoint as executors of your Will?

You will need to decide whom you would like to appoint as executors of your Will. Executors are individuals or organisations that administer your estate when you die. This is one of the most important decisions when you create your Will and can be:

  • Trusted individuals, such as a relative, friend or partner
  • If married, your spouse
  • If in a civil partnership, your civil partner
  • A solicitor
  • A trustee company - generally a company set up by a firm of solicitors or others who deal with the administration of estates specifically for the purpose of acting as executor when required

You should be sure only to appoint persons whom you trust, who will see that your estate is settled efficiently and quickly. Often a spouse, an adult child or close relative is appointed as executor, but you should consider whether they will have the necessary time and expertise to administer your estate.

If you appoint your spouse or civil partner as an executor, that appointment will not be effective if, later, you get divorced or your civil partnership is dissolved (or if your marriage or civil partnership is annulled) unless you make it clear in your Will that you do want them to continue to be an executor despite the divorce, dissolution or annulment. If you don't do this, your former spouse or civil partner will be treated as if they died before you.

Unless you are appointing a trustee company, we recommend that you appoint at least two executors. This is simply because the duties and responsibilities of an executor can be onerous, and it can be reassuring to your executors for these to be shared. It can also operate as a safeguard against a sole executor dying before you or becoming unable to act for any reason or abusing his/her position.

Although you can appoint as many executors as you want, it is generally not a good idea to appoint more than 3 or 4 as in the course of dealing with an estate after somebody passes away, some forms will have to be signed by all the executors. Having a large number can slow down the administration of the estate. It is common to appoint executors in your Will who are also trustees for any trusts created in the Will.

Do you wish to be buried or cremated?

You might want to think about whether you want to be buried or cremated. Whilst you do not have to state how you wish your body to be disposed of when you die, you may do so if you wish. Whatever you do, as the instructions in your Will are construed as an expression of wish only, it is also important to tell those nearest to you what your decision is. You should also make sure that the instructions in your Will are kept up to date if you change your mind. Furthermore, if you would like to leave your body to medical science, the relevant paperwork could be completed by you and deposited with your Will.

Leaving gifts of money and specific items

You should think about whether you wish to leave gifts of money, called pecuniary legacies, (e.g. £10,000) or gifts of specific items (e.g. your car, your CD collection, your wedding ring). If your estate is over the tax-free allowance, you'll need to think about whether you wish to make these gifts subject to tax or free of tax (see our Inheritance Tax section for more information). Furthermore, you may wish to consider charitable legacies to specific charities of your choice. Any such legacies to UK registered charities would attract tax benefits.

Do you have children under 16?

You can specify one or more people to act as a guardian in case you and the child's other parent die simultaneously, or the other parent becomes unable to look after the children for any reason. You should ideally agree with the child's other parent (if applicable) and ensure you have the agreement of the person(s) you are appointing to act as guardians.

Rest of your estate ('residue')

For most people, this will be the bulk of their estate, and there are a variety of options for giving it away, which for a married person or person in a civil partnership include giving just the income of the estate to your spouse or civil partner, and holding the rest to be given to others after your spouse/civil partner passes away. You do need to think carefully about what your spouse or civil partner will need after you pass away, however, and ensure that they are not left in a difficult financial position. In many cases, spouses or civil partners will simply leave the whole of the estate to each other.

If you have left out certain family members from your Will, you should be aware of the existence of legal rights claims. See our articles on 'Family left out of the Will' to assess how likely it is that these claims might be made when deciding how you want to dispose of your estate

Ultimate residuary beneficiaries

You can nominate ultimate residuary beneficiaries (a 'beneficiary' is a person who gets a gift from your Will) in case some or all of those you name in the Will die before you.

Pets

If you have any pets, you can think about who you wish to look after them when you pass away, and whether you wish to leave them any money for the upkeep of your pets.

Please note that you need the full address, ideally with postcode, of anyone you name in your Will, whether making a gift to them, or appointing them as executor or guardian. If you are making a gift to a charity, you should get the official name, address and registered charity number.