Having an up-to-date will means that when you die, your assets are divided between family, friends and any other beneficiaries that you appoint. Even if you have created a will, your loved ones may be shocked if there is a problem with your will. The laws surrounding wills are complex and there are a number of issues that could prevent your will from being executed in line with your intentions.
Here, Alison Beech, partner at Percy Hughes & Roberts Solicitors details 14 common mistakes that people make when producing a will.
1. Not updating your will regularly
Official guidance from the government advises that you should update your will every 5 years, or at the time of an important life change such as the birth of a child, a marriage or a divorce.
If your will is out of date, there could be confusion between your family members that could complicate the execution of your will. If you marry or enter into a civil partnership your will is revoked.
2. Not including all of your assets in your will
Most people remember their tangible assets in their will, but forget to include any intangible assets they may have. For example, you may have financial assets such as bank accounts, premium bonds, potential funds or shares that should be included in your will.
Additionally, you should leave the details for your social media accounts, digital photographs, music and other online accounts.
3. Not using the correct wording when referring to your children
When executing the terms of a will that refers to ‘my children’, an executor will assume that this refers only to your biological children, instead of including any step children that you have with a partner. This applies even if you have raised your step child from birth. If you want your step children to be included in your will, be sure to explicitly mention them.
4. Creating a ‘DIY’ will
Creating a will yourself is possible, but you should always follow legal advice to the letter. If you write your wishes down on a piece of paper, this is not enough for the document to be legally binding. A will is a complex legal document and should be created as such.
If you seek professional advice when preparing your will, a solicitor will remove any ambiguous language, and help you to clarify your intentions, preventing the document from being ruled invalid.
5. Being overly specific when describing your assets
Legal professionals would always advise you to be as specific as you can be within certain aspects of your will, but there could be an issue with being overly specific that could prove detrimental if your circumstances change.
For example, you may leave a member of your family the “yellow Mercedes”, but if you have sold this asset by the time the will is executed, your family member wouldn’t automatically be entitled to the vehicle you replaced it with.
To overcome this, you could update your will regularly to ensure that any specific assets are included (or excluded) where appropriate. Alternatively, you could ensure that certain assets are referred to in general terms, such as ‘the car that is in my name’.
6. Not having an original copy of your will
Not everyone is aware, but a photocopied version of your will is not valid. The executors of your will need to have the original copy of the document to legally administer your estate.
It will be hard to acquire a grant of probate to manage your affairs if there is not an original copy of the will available.
7. Not having the correct witnesses to your will
Your will needs to be signed in the presence of two witnesses, both of whom should be UK citizens aged 18 and older, and are not named as or married to a beneficiary in your will.
If these two witnesses were not present at the time that the will was signed, it will be deemed void.
8. Asking a partner or child to witness your will
As stated above, your witnesses should not benefit from your will. Asking a child or partner to witness the signing of the will could inadvertently disinherit them.
Be sure that your witnesses do not stand to gain anything from your will.
9. Lacking full capacity
Often, disputes around wills occur when someone challenges whether the deceased had ‘full capacity’ when they produced the will.
If you are under the influence of alcohol or drugs, or are suffering from dementia or a mental illness when writing the will, the validity of the document could be contested.
10. Not appointing guardians
A will should appoint guardians for your children, so it is important that you think about who you would like to care for them after you die.
Unfortunately, if you’re the only surviving parent and you do not specify a guardian for your children, the case may go to the family courts to decide who has guardianship of your children.
11. Not considering debts
If you have debts at the time of death, the person administering your will should first settle the debt. The most common form of debt is a mortgage, which can take a considerable amount of the estate.
12. Appointing the wrong executor or forgetting to name an executor
The person responsible for executing your will should have been named within the will. Unfortunately, many people forget to name executors, meaning the probate court will then be responsible for appointing an executor who may not be the first choice of the deceased.
In most cases, the executor is a family member or friend of the deceased, but you can appoint a professional executor in the form of a solicitor.
13. Making changes to your will after it has been signed
If your will has been signed and witnessed, it cannot be amended. You need to make an official alteration known as a codicil, which has to be signed and witnessed, or you can make a completely new will.
There are no limits to the amount of codicils you can add to your will, but it is often the case that making a completely new will is more straightforward.
14. Not having a will
If you die intestate – meaning that you did not have a valid will at the time of death – your assets will be divided according to the rules of intestacy. These rules follow a hierarchy of beneficiaries to your estate, and the order is as follows:
- Spouse or civil partner
- Children or grandchildren
- Uncles and aunts
The highest-ranked existing and surviving relative will take priority over other relatives. You may not consider this to be appropriate for the division of your assets, so we would highly advise that you write a will, and keep it updated accordingly.