Over 70% of adults wait until they are over 30 before writing their first will. I often speak with clients whose decision to organise their affairs is prompted by a change in lifestyle, such as marriage, divorce, providing for children or an increase in assets.
With such important reasons for making a will, it’s vital that care is taken to get it right. Otherwise you could find that your wishes are not followed after your death.
Choosing your executor
An executor is the person who takes responsibility for carrying out your wishes as instructed in your will. Depending on the complexity of your will, this can be a daunting task involving a considerable amount of work. It’s important, therefore, to ask the person you choose before naming them, to be sure they are willing to help.
Your executor will need to manage your financial affairs, so be sure they are competent for the task in hand. Ideally you may choose two executors, in case one has become mentally incapacitated or passed away before you.
Make sure that your will is clearly worded in such a way that your executor has the power to manage all aspects of your affairs, including paying bills. This allows matters to run much more smoothly for your loved ones at such a sensitive time.
The case for financial provision
I have had situations where a client may choose to leave a relative out of their will. This is rarely a decision taken lightly, but whatever your reasons you should seek legal advice before doing so. It is possible for a relative to bring a claim for financial provision after your death, tying your estate up in legal proceedings until matters are resolved.
While I have used the term relative, the person referred to does not have to be related to you by blood. A person who is able to show that they were dependant on you at the time of death, including an ex-spouse or partner, a child or adult who resided in your home or a person who was maintained, even partly, by you, may claim a need for financial provision.
The media have recently reported on the case of Ilott v Mitson, where a mother deliberately left her daughter, estranged for 26 years, out of her will. Instead the majority of her estate was left to charities.
The daughter issued a claim for financial provision in court, and despite challenges from the charities, she was awarded a sum of money sufficient to buy her council property, partly in consideration of her circumstances, as she was suffering from severe financial hardship.
This case has attracted a lot of attention because it is unusual for the courts to set aside a deceased person’s will in order to provide financially for an independent adult child where the parties have been estranged for a long period.
I would suggest that if you intend to leave a family member from your will and have concerns that this might be challenged, you should obtain legal advice to see what steps can be taken, as there are some ways to deter claims so that your assets go to the people you have chosen.
Choosing your Guardian wisely
Considering the circumstances of your death is never a pleasant subject, even more so when you have to imagine a time where you may leave children without a parent.
Naming a Guardian in your will provides you with peace of mind, knowing that your children will be cared for by the person you consider most suitable. However, being a Guardian is a demanding role, not least because of the cost of bringing up an additional child, and it’s important they, and you, have fully prepared in advance.
In these circumstances you would be likely to make financial provision for your child’s upbringing in the form of a trust fund.
Clients often want to appoint the same person to be both Guardian and a trustee of their children’s trust fund. Although this might seem a logical step because it allows the person who cares for the children access to money for their maintenance, such as clothing, education and leisure activities, it could lead to problems.
Actually, the trustees have the power to set up arrangements to pay for things the children require. There are some strong reasons to keep the roles of guardian and trustee separate to avoid a conflict of interest which could arise if the same person has both roles
The best tip when writing your will is that, if you are in doubt at any point, obtain professional legal advice. It’s better to check in advance that your assets go to the people you most want to have them.
For more information contact Barker Evans Law