Planning Your Will

Wills Factsheet No.4

Before starting to make a Will it is a good idea to plan what you want to do and to think through what the position would be if you were no longer alive - what property do you need to dispose of, who would deal with various aspects of your estate, would those you leave behind know where to find things and who might suffer financially.

A number of key issues need to be thought about. These include:

what you own and what it is worth - this is an important first step as it will help you decide whether you need to worry about issues such as Inheritance Tax or trusts and may affect how you leave your estate and the complexity of your Will;
who to appoint as executors - including how many and whether any are to be a professional person;
whether you want to be buried or cremated - including any other arrangements you wish to make such as the nature of your funeral ceremony, how you want ypur remains to be disposed of and organ donation. For more information see the separate Factsheet entitled Funerals and your remains;
whether you want to make any specific gifts of money or property - and if so to whom and in what circumstances. See our factsheet entitled Legacies and gifts for more information;
what you want to do about any children under the age of 18 - especially in the event that you are the sole surviving parent or guardian. You will find more information about this in our Factsheet Guardians and your children;
whether there is anyone else who has a call upon your estate - for example because you are responsible for looking after them or because they live with you;
what you want to happen to the residue of your estate - that is to say the balance of your estate after all of your debts and any specific gifts have been paid. See our Factsheet Legacies and gifts for more information; and
whether you want to make a provision for alternative recipients of your residuary estate - for example in the event that the person to whom you leave your residuary estate dies before you.

Valuing your estate

When planning your Will you need to have a rough idea of what your estate is likely to be worth on your death. This could influence the complexity of your Will, whether you should be making life-time gifts, whether you need to set up trusts or whether you should take out insurance to cover the cost of inheritance tax.

When valuing your estate you need to give thought to:

Your home: You will need to get a valuation of your home. Bear in mind that you need to keep an eye on property values in your area as increases could push you over the threshold for Inheritance Tax. Also, be aware that if you own your home jointly with others as a joint tenant (as opposed to tenant in common) then it will not form part of your estate.
Stocks and shares: Any valuation which you get now will not necessarily be relevant when you die - it will depend upon the performance of those securities. Be alert to this and if the value of a stock holding starts to increase think about the effect this might have on inheritance tax.
Inheritances: If you are likely to inherit before your death then you may need to take steps now to plan for the effect that might have upon the value of your estate. You might want to think about varying the terms of any Will under which you are left property to divert funds direct to your heirs.
Pensions and life insurances: Think about the possibility of making an expression of wish in relation to these so that the value of them goes direct to a beneficiary rather than having to await probate.
Business assets or agricultural property: If you are the sole owner of a business or a partner in the business, then the value of your business assets may fall into your estate. You should also think about having a succession plan which does not simply come into effect after your death. Bear in mind the effects of business property relief, agricultural property relief and agricultural relief.
Debts and liabilities: Don't just think about what you own - also think about what you owe or will owe and factor in any costs likely to be occasioned by your death - for example funeral expenses.

Appointing Executors

Everyone who makes a Will needs to have someone who will deal with their affairs after their death. This role is performed by the executors of the deceased.

It is the responsibility of the executors to take all necessary steps to give effect to the Will, and to ensure that the deceased's estate is distributed in accordance with the Will.

Who you appoint as an executor is an important step since they will have the responsibility for looking after your estate when you die. You need to give careful thought as to whom you wish to do this for you and whether they will cope with the potentially onerous responsibility.

Remember that if there is no one whom you wish to appoint, or if you would like there to be someone who is used to dealing with the complexities of an estate administration, then Richard Nelson LLP is always happy to be appointed as a professional executor.

To find out more about how we can assist go to our Professional Executor Services section.

There are some legal and some practical requirements as to whom you should appoint as executor. So far as the legal requirements are concerned, your executors should be:

18 or over,
of sound mind, and
not in prison.

So far as practical considerations are concerned, you should give thought to the following issues:

do they know enough about you and your estate to be able to deal with everything?
are they sufficiently close to your home that they can, if necessary, handle any practical issues that arise? Appointing an executor who lives in Australia when you are in England may not be the wisest move;
will they be able to cope with the complexities of your estate? If, for example, you have lots of share holdings and investments will they know what to do to administer the estate adequately?
are they trustworthy and reliable and prepared to administer your estate impartially?
is their appointment going to cause conflict within the family and if you appoint them are they going to be strong enough to stand up to the demands of other family members?
are they likely to outlive you?

The most frequent choice of executor tends to be the spouse or civil partner of the testator, followed by a child or long-standing friend of the family. Despite what many people think, there is nothing to prevent you from appointing someone who is a beneficiary to be the Executor. There are a few further matters which you might like to note:

sometimes executors are referred to as personal representatives (although this tends to be more in relation to the administration of an estate on an intestacy),
executors are often also the trustees of any property which is held in trust, for example for any children aged under 18 or any beneficiary not able to look after their own affairs,
executors may also be appointed as the guardians of any children aged under 18, and
a female executor will sometimes be referred to as an "executrix", (although this is becoming less common).

Where you appoint a member of your family or a friend to be the executor, then it is not usual for them to be paid - although it is usual for them to be able to claim any expenses incurred by them in administering the estate and it is common for a gift to be included in the Will by way of thanks.

However, where you appoint a professional executor then you must expect them to be paid for the work which they do. This payment will be made out of the estate before any residue is distributed. You can appoint a professional person (for example a solicitor or accountant) to act as the executor of your estate - either alone or in conjunction with someone else such as a spouse of child. Although they will charge for that service they will have the advantage that they know how to deal with the estate in the most effective way and how to maximise the value of the estate. They will also have the benefit of being neutral and are unlikely to be intimidated by competing claims within the family, should they arise.

Professional executors have a number of other advantages too, including:

they will not have to cope with the grief of the death whilst at the same time dealing with practical issues;
their cost can often be made up in savings in time, problems and tax;
if they are solicitors they will be subject to strict rules of conduct and carry professional insurance in case a problem arises with their services;
if they are solicitors or trust corporations they can make probate applications by post - otherwise a personal attendance is required;
if the estate is a complex one a private executor may in any event have to appoint a solicitor or accountant to assist in obtaining the grant and distributing the proceeds;
if there is a house or land that needs to be sold they can deal with the conveyancing as part of the work they do; and
they will understand, and be able to deal with, any inheritance tax issues which arise.

As already mentioned, the Richard Nelson LLP specialist probate and administration team can give you the comfort and reassurance of an excellent service provided by a professional firm of solicitors. You can find out more about the duties of executors in the Duties of Executors Factsheet.