Wills - Frequently Asked Questions
1. Who can make a Will?
To make a valid Will you must be 18 or over and have the required ‘mental capacity’. This means that the person wishing to create a Will must have an understanding of the nature of their actions and its effects and the extent of their property.
2. What is an Executor?
An executor has various responsibilities under a Will, which can be time consuming. Responsibilities include:
- paying of the deceased’s debts
- organising funeral expenses
- arrangements for the deceased’s home, for example valuation and sale
- establishing assets
- paying beneficiaries and legatees in accordance to the Will
3. Who can be an executor?
A member of your family, your partner, a friend or solicitor may act as your executor. The executor must be over the age of 18.
4. How many executors can I have?
Up to 4 executors can act at a time. At least two executors are needed if their might be a trust to administer. You can appoint substitute executors if the first choices die before you.
5. Can executors be beneficiaries?
Yes, an executor may be a beneficiary in your Will and it is often appropriate that the main beneficiary is an executor. Alternatively you may wish to gift a sum of money to your executor conditional upon them acting as your executor.
6. If I appoint my solicitor as the sole executor, is there a charge for this?
Yes, the solicitor is allowed to charge reasonable costs for acting as an executor. The usual charges are between 1½ to 2½% of the estate and are paid from the estate at the end of the administration.
7. How can I revoke my previous Will?
A Will can be cancelled simply by creating a new Will which states that all previous Wills are revoked. Your current Will will be automatically revoked if you marry or enter into a Civil Partnership. A clause may be added to stipulate that your current Will is not to be revoked by your intention to marry or enter into a civil partnership with the named partner.
Alternatively, a Will can be revoked by destruction, for example, by burning, tearing or otherwise.
8. Who can witness my Will?
Any independent person may witness your Will. Independent means that they must not be related to the maker of the Will or be a beneficiary under the Will. It does not have to be a solicitor; it can be a neighbour or friend.
9. What should I do with my Will once I have executed it?
Once you have signed your Will and had it witnessed you will need to send it back to Simpson Millar LLP so that we can ensure it has been executed correctly. As part of the Will service, Simpson Millar LLP will then store your original Will in our Wills safe and then provide you with a copy.
10. What will happen if I do not make a Will?
A Will allows you to specify how you wish your estate to be administered once you pass away. If you have not made a Will when you die your estate (all that you own at the date of your death) will pass under the ‘Intestacy Rules’. These rules decide who should be entitled to your estate. It is important to note that these rules only apply to property that would normally pass under a Will had a Will been made.
11. How is my property dealt with under my Will?
Partners will usually hold their property jointly, this is known as ‘Joint Tenants’. If you hold your property as Joint tenants, should one partner die, that share is passed automatically to the surviving partner and will not pass through the Will. This is known as passing by ‘Survivorship’.
Alternatively, you may hold your property in specific shares; this is known as a ‘Tenancy In Common’. This means that your share in that property will pass in accordance to your Will as it will form part of your estate (all that you own at the date of death). This enables you to make a separate gift under the Will to specify who is to take your share in the property, unlike a Joint Tenancy.
It is easy to convert a Joint Tenancy into a Tenancy In Common if you wish to make a gift of your share of the property. This can be done by Simpson Millar by serving a ‘Notice of Severance’ on the other party, which is then registered with the Land Registry. Once this is done, provision can be made in your Will to gift your newly created share of the property.
12. What is a Grant of Probate?
A Grant of Probate gives the nominated executors, who are then known as the Personal Representatives, to deal with the deceased’s assets which pass in accordance to the Will.
It is not always necessary to obtain a Grant of Probate, for example, if assets do not exceed £5,000 or if any property is jointly owned, it will not pass through the Will.
Make a Will...
Contact our Wills and Probate Team now to discuss how we can help you by calling 0808 129 3320 or use our online enquiry form and we will call you back.