How to Create a Legally Binding Will: A Complete Guide
We all hope that when we die, our loved ones will be looked after. But there are rules about how your money, property and possessions are distributed when you die, and without a legally binding will in place, you may not get what you want.
You may hope that your future assets will be shared fairly in a verbal agreement alone, but family relationships break down, so having a formal will is key to estate planning and peace of mind.
What is a will?
A will is a written declaration detailing how you wish your money and possessions to be allocated in the event of your death. It’s possible to write the will yourself, but it will need to be formally witnessed and signed to make it legally valid.
In the UK, two witnesses are required to sign a will, and although there’s no legal requirement to formally register it, once signed, it is advisable to tell the executors where the will is stored, as they will need the original copy.
Legal context in the UK:
The Wills Act of 1837 confirms the power of every adult in the UK to dispose of their real and personal property, whether they’re the outright owner or a beneficiary under a trust, by will on their death.
An amendment to a will is known as a codicil and, in the same way as a will, needs to be witnessed and signed. It should be kept with the original will document.
Why you need a legally binding will
Avoiding intestacy:
Dying without a will, known as intestacy, can lead to family disputes, undesired distribution of assets, and complications with managing things like bank accounts, owned land and funeral expenses.
To protect your interests, you should ensure a legally binding will is in place, preferably enlisting the help of a wills solicitor to ensure everything is correct.
Protecting your loved ones:
A will protects your beneficiaries by ensuring they’re looked after in the event of your death – it’s the greatest gift you can leave to your family.
Steps to create a legally binding will
Step 1 – Identify your estate
Everything owned by a person who has died is known as their estate. This includes property, personal possessions and money (cash, bank balances, money owed, life insurance policies, and investments).
Step 2 – Choose executors
Choosing the right person to be an executor of your will is vital, as this important role involves managing all aspects of your estate – from securing any property and distributing assets to locating financial documentation and paying debts and taxes.
It’s wise to choose someone you trust, someone who has the time available to take on the role, someone who is confident with legal matters, and someone who is efficient at managing paperwork.
Step 3 – Decide on beneficiaries
Deciding who will inherit your estate when you die may seem a daunting task, but you can decide on beneficiaries by considering a number of factors: your relationships with loved ones, who you trust to manage your assets, who would suffer financially if you were to die, and the age and financial readiness of potential inheritors.
Step 4 – Draft your will
Drafting a will can be done by yourself, by a wills solicitor or with the help of online tools such as a will template.
To mitigate the risk of issues further down the line and to ensure your peace of mind, enlist the help of a wills solicitor when making a will. They will check for inaccuracies and inconsistencies and ensure the document is watertight. For professional legal help, call us at 08082747557.
Step 5 – Sign and witness
Although you may write it yourself, a legally binding will must be witnessed and signed by two people. You and your witnesses must sign the same document, and each party must have a clear view of the other when signing. If you’re unable to sign the will yourself, someone can do it on your behalf.
Your cannot leave your witnesses (or their married partners) anything in your will.
Step 6 – Store you will
As mentioned, it’s vital that the executors are informed of the location of the will and that it is easily accessible, as they will need the original copy in the event of your death. Storage locations should be safe and can include your home, a safety deposit box, your solicitor’s office, executor’s estate or online document storage.
In England and Wales, you can store your will with the HM Courts and Tribunals Service for a fee of £20, which you can retrieve yourself or can be retrieved by your executors following your death.
Legal requirements for a valid will in the UK
The conditions that must be met for a legally binding will in the UK are as follows:
Age: The person making the will must be 18 years old or older.
Mental capacity: The person making the will must be of sound mind.
Voluntary undertaking: The person making the will must do so voluntarily, without coercion.
Written form: The person making the will must do so in writing.
Witnesses and signatures: The person must have the will witnessed and signed by two witnesses over the age of 18.
Common mistakes to avoid when writing a will
- Not updating your will: It is important to update your will as and when life events dictate, for example, after a marriage, divorce or birth of a child. This ensures all your loved ones are protected and that those who you wish to be included and excluded are.
- Failing to appoint guardians for minors: If you don’t appoint a legal guardian for your children, in the event of your death, the court will decide who to appoint instead. This could mean that someone you consider unsuitable or sub-optimal will care for your children.
- Overlooking inheritance tax: Inheritance tax is paid by a person who inherits money or property from a person who has died. Proper planning can ensure that, after your death, the amount of inheritance tax paid is minimised, for example, by leaving your estate to a spouse or civil partner, setting up trusts, gifting to charity and using life insurance.