The basics

A will should provide for the “estate” (the property and assets) of a “testator” (the person whose will it is) to be inherited by those people (the “beneficiaries”) he or she would like to inherit his or her estate. It should also make provision for all other matters which the testator wishes to take effect after his or her death and may contain provisions aimed at mitigating the estate’s liability to tax.

Gifts to beneficiaries

Preliminary matters to consider

If you have made the decision to leave your estate to more than one person it is a good idea before making a will to roughly work out what your estate is likely to comprise of when you die so as to ensure that your estate is inherited by your beneficiaries in the proportions you so wish. For example, you may consider your home to be your most valuable asset but if there is likely to be a large outstanding mortgage on it at the time of your death it may be that other assets you hold will be more valuable.

Property owned jointly or money held in a joint bank account may not fall within your estate. Instead it may pass automatically to the other joint owners.

Insurance policies are often worded in a way in which the proceeds are held in trust for someone else. If that is the case they will not form part of your estate and will be automatically be paid out on your death. On this note it is important to ensure that your insurers are aware of the names of the people whom you would wish to receive payment. Similarly, pensions do not usually form part of a person’s estate and conditions may be attached to private company shares specifying whom they may be transferred to upon the shareholder’s death.

Making gifts to your beneficiaries

Your will should make provision for your estate to pass to the beneficiaries of your choice upon your death.

It is important to make sure that your will clearly states who your beneficiaries are to be. In doing so you may name your beneficiaries or define them as, for example, “my grandchildren”.

Beneficiaries are normally family members, friends or charities.

When making a will you can leave specific property and assets to specific beneficiaries (“legacies”). Where specific property and assets are left to specific beneficiaries it is important to make sure that the property and assets you wish each beneficiary to inherit is clearly defined.

Any part of your estate which has not been specifically dealt with by your will is known as your “residuary estate”. Your residuary estate can be left to one person or shared between more than one person. If it is to be shared by more than one person your will should state the proportions each beneficiary is to receive.

When leaving property or assets to a beneficiary you may wish to impose a condition, for example, if you do not want one of your beneficiaries to inherit your estate until they reach a certain age. Any conditions imposed must be reasonable and not contrary to public policy. If they are not then a Court may set aside any such bequest.

Your will should make provision as to what should happen if any of your beneficiaries die before you and could make provision for additional beneficiaries who may be born after you make your will.

Appointment of executors

The role of an “executor” is to collect the estate of a person when they die, to discharge any liabilities of the estate and to distribute the remainder of the estate to the beneficiaries. In your will you should appoint at least one executor, although it is a good idea to appoint more than one executor in case one of them dies before you or cannot act.

Executors can be beneficiaries under the will and are normally family members, friends or a solicitor.

Trusts and trustees

Sometimes a “trust” is created by a will. Trusts are commonly used to mitigate liability to Inheritance Tax or where a beneficiary is not able to inherit an estate straight away or where a beneficiary is unable to manage the assets themselves.

Where a trust is created in a will, the trust property should be defined, trustees should be appointed and the powers of the trustees should be set out.

Appointment of guardians

If you have children under the age of 18 you should appoint a guardian in your will to look after your children in the event of your death. It is a good idea when appointing guardians to make provision for maintenance payments to your children.

Funeral and burial arrangements

In your will you can make known any wishes you may have in relation to your funeral or the disposal of your body. Any such provisions will not be legally binding but are usually adhered to.

Attestation clause