March 4, 2020

Is a simple Will enough?

Let's start with the basics!

A Will is a legal document in which you (the testator) provide instructions for the people you choose to administer your estate when you've gone. These people are called your executors.

Are there different types of Wills?

With ever more complicated family scenarios and family structures, it is often the case that estate planning needs to reflect this. We first need to understand what we would like to achieve, who we would like to benefit from our estate, who we don't want to benefit, and what would happen if we didn't have a Will.

There are lots of names given in estate planning to Wills and Trusts and these estate planning 'tools' work together to help protect, preserve and pass on our wealth (no matter how small).

In short, Yes, there are different types of Wills.

Here are a couple of the names given to Wills:

Privilege Wills -

This is an anomaly in Will Writing. It's fairly uncommon and doesn't satisfy the formalities that traditional Wills do in the sense that they need to be signed, and can be instructed orally. They are normally made by men or women in active military service or in operational service. Another difference to a 'normal' Will is that they can be made by someone under the age of 18.

Simple Will - 

A simple Will would traditionally be a Will made by someone who had a modest estate. Traditionally they would leave the estate to their child or children outright. More complex planning might be needed if someone has divorced and remarried or if they have remarried and there are children from a previous marriage.

It is entirely possible to write your Will yourself and you don't need a Solicitor to write your Will BUT a DIY Will has it's dangers and it's wise to consider what could go wrong. So many people think that you just name what you have and who you'd like to inherit it, but if your family circumstances aren't simple then advice should be sought.

Mirror Wills -

A term given typically when a couple writes their Wills together. They don't have to be exactly the same and often have small variances including gifts like jewellery, or when funeral wishes differ etc. but the standard terms of the Will tend to mirror each other. This could mean that executors are the same, guardians appointed to look after minor children are the same and they often leave everything to each other and then perhaps onto children.

More complex planning can be incorporated into mirror Wills to take family circumstances and wishes into account but this can only really be implemented with the help of trained professionals.

Mutual Wills-

Mutual Wills are rare and with good reason. The term 'Mutual Wills' is in itself a little miss-leading as they are 'normal' Wills made subject to a separate agreement. The agreement seeks to bind the survivor to the terms of the original Will, allowing any aggrieved beneficiaries to sue for breach of contract if any subsequent changes disadvantage them.  Such Wills are inflexible and don't take into account changes in personal circumstances. Issues only arise when the first person passes away when disputes arise. Instead, there are normally better alternatives to protect your assets to ensure they are passed to loved ones after you've died.

Is a Simple Will enough?

In some cases, yes, a simple Will may be all that is needed but as mentioned, it's a good idea to seek professional advice to ensure it does what you're expecting.

What happens if I become incapacitated?

Some of us are more at risk of becoming incapacitated than others. Road traffic collisions are a huge cause of incapacity as is dementia or suffering from a stroke. Traditionally the latter is more common in older age but it can have dramatic effects on us no matter who it happens to or when.

A Will cannot help us if we become incapacitated as this deals with matters after we've gone and this is where important documents like a Lasting Power of Attorney come into play. Check out our other articles for more information on LPAs or ask for our LPA brochure below.

DIY Wills

As we all know, DIY Wills are Wills we write for ourselves. A DIY Will kit is often available from reputable stationery shops and we have seen lots of terrible DIY Wills over the years. Issues with Wills are only really brought to light when the testator passes away by which time it is often too late to put things right and whilst well-meaning, the person who wrote the Will for themselves won't ever realise how much they have messed up. We have seen cases where the Wills aren't valid because they haven't been signed properly, where gifts have been made multiple times, where trustees and executors haven't been appointed and where we can't even understand the intention of the testator.

If you're planning on writing your own Will, consider having it checked over by a professional after to make sure it does what you're expecting.

What if it all goes wrong?

As we've said, we have seen some disasters when it comes to DIY Wills and in many cases, the errors have been left too late to rectify. In some cases, we're able to put things right by doing a Deed of Variation. A Deed of Variation is a way to change the Will after someone has died. It can only be done within 2 years of the date of death and needs the consent of the beneficiaries who are essentially giving up their inheritance or who are adversely affected.  If they are unwilling, it can't be done.

Reasons why a Deed of Variation are done, include the following;

  • Tax mitigation (Capital Gains Tax or Inheritance Tax most commonly)
  • To create trusts within the Will; and
  • To address any uncertainty in the Will and to provide for people or charities who have missed out.

Deeds of Variation are commonly used where receiving an inheritance is likely to take someone over the Inheritance Tax threshold and the person benefiting would rather it skip them and go to their children, commonly where a grandparent dies. This is also common where the child of the deceased doesn't need the gift but wants it to pass to their children directly so it never forms part of their estate.

For more information on Deeds of Variation or any of the other topics in this article, speak to our team about your circumstances, by contacting us below.

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