Guide to types of wills

Why have a will?

A will is a legal document which takes effect on your death and enables you to make decisions about your property and belongings. It is a common myth that your spouse or partner will automatically inherit your estate should you die, whereas in reality, this is only the case if your estate is under a certain value or if you have no other relatives who survive you.

If you die without having made a will then the rules of intestacy apply to determine who benefits from your estate. These rules are very restrictive and do not take personal relationships into account, which can be especially problematic if you have a partner but are not married.

A will can also be used to decide who deals with your estate (an executor) and who is to look after any children who are under the age of 18 (a guardian), on your death.

If your estate is over a certain value or if you have foreign, business or agricultural assets then a will can help to reduce the effects of inheritance tax.

We have many years’ experience in drafting wills that take into account each client’s individual circumstances to ensure that their wishes are met.

What to consider when making a will

When making a will, you need to consider the following:

Who you would want to act as your executor: This could be a family member, friend or a professional executor such as a solicitor.

Who you would want to be the guardian of any young children. If nobody is appointed to have parental responsibility upon your death, this decision will be left to the courts.

Who you would like to receive your estate: This could be your spouse or partner with a further provision on to children or grandchildren if your spouse/partner dies before you.

Would you like to leave any gifts of property or money to certain people or charities? Some people wish to ensure that family heirlooms are kept within the family, others wish to leave a sum of money for their grandchildren. Such gifts can only be valid if you have made a will.

Is there anybody you wish to exclude from benefiting from your estate? It can sometimes be just as important to ensure that certain people do not benefit from your estate, as to ensure that certain people do.

Any funeral directions that you wish to include in your will such as burial or cremation. There may well be other issues that you need to consider and we would guide you through the whole process.

With second and subsequent marriages becoming more common, we appreciate that not everyone’s circumstances are straightforward and we always appreciate the need for sensitivity, whilst providing professional advice.

A will can also ensure that your estate remains within your family, even if the surviving spouse goes on to remarry. A will can also help mitigate the effects of care fees if long term care becomes necessary.

What if you already have a will?

We always advise our clients to review their wills every three to five years (or earlier if circumstances change). Some events such as marriage or divorce can impact your will. The birth of a child, for example, may affect your wishes and so it is important to review your will regularly.

What type of will do I need?

The two types of basic wills available to people in England and Wales are:

• Single will
• Mirror wills

Although, depending on your individual circumstances, it may be necessary to include a trust as part of your will to increase asset protection for your loved ones, for example:

• protecting your estate against any possible care fees in the future;
• making provisions for children from a previous relationship; or
• leaving some of your estate to a vulnerable or disabled person.

Including a testamentary trust in your will

The type of trust that you include in your will is dependent on a number of factors, but is most commonly one of the following:

• Property trust will
• Discretionary trust will
• Life interest will

The following paragraphs provide an overview of each of the types of wills and trusts available and guidelines as to which one is most appropriate for which circumstances. However, If you require further assistance with deciding on which is the most suitable for you, our team of will writers will be happy to discuss all of your options  with you and suggest the most appropriate way forward.

What is a single will?

A single will is written by a single person. Although, if you are married, living as a couple or in a civil partnership, it still may be more appropriate to make a single will if, for example, your partner already has a will containing wishes that are different to yours.

It enables you to name specific people or charities who you want to leave your assets to after you die and how you want to split your things amongst them.

It also allows you to specify who you would want to look after any children you have who are under 18 and who you would want to protect any inheritance you leave to those children.

A single will provides a way for you to be able to document your individual final wishes with regards to specific items you want to pass on, funeral arrangements and who you want to sort out your affairs for you after your death.

What is a mirror will?

Mirror wills are recommended for married, unmarried or civil partnership couples who have very similar ideas about what should be included in their wills.

They are two separate legal documents with almost identical content. A simple example would be partner one leaves everything to partner two and partner two leaves everything to partner one, and whoever dies last leaves everything equally to their children.

As with a single will, mirror wills enable to you to legally set out your wishes and can prevent the confusion and complexities associated with not having a will in place at the time of your death.

However, it is important to understand that it is possible for one person to alter their will without the other knowing. Even after the death of one person, there is no legal obligation for the surviving person to keep their original mirror will.

Therefore, if you are considering making mirror wills, we recommend that you seek expert advice before doing so.

What is a property trust will?

A property trust will provides increased peace of mind for you and protection of your property’s value for future generations.

It enables you to guarantee who benefits from your share of the property should your surviving partner either:

• remarry after you die (marriage automatically invalidates any existing wills); or
• rewrite their will after your death, changing their original wishes.

It may also help to reduce the potential impact of residential care fees on the value of the property, maximising the benefit to future generations.

Consider a property trust will if you:

• co-own property with another person;
• want to protect the property value for specific loved ones in the future; or
• want to protect the property value from the potential future risk of residential care fees.

What is a discretionary trust will?

A discretionary trust will allows you to appoint trustees to manage inheritance on behalf of vulnerable loved ones who require assistance.

It provides a guarantee that vulnerable people are assisted in the management of their inheritance and reduces the risk of state benefit entitlements being compromised by it.

A discretionary trust will may also potentially help unmarried couples with their inheritance tax planning.

Consider a discretionary trust will if you:

• wish to leave inheritance to loved ones who do not have the mental or physical capacity to look after their own affairs;
• wish to leave inheritance to loved ones who have a disability and run the risk of having their state benefit entitlements compromised by the receipt of inheritance;
• wish to leave inheritance to beneficiaries who are in a vulnerable position, for example, someone with learning disabilities, undergoing a divorce or struggling financially; or
• wish to retain maximum flexibility and for your trustees to be able to take into account your beneficiaries’ future circumstances.

What is a life interest trust will?

A life interest trust will is suitable for those who have significant assets or investments, including property, and wish to protect their value for future generations.

It is one way of guaranteeing who benefits from your cash assets and investments, as well as your property, should your surviving partner:

• remarry after you die (marriage automatically invalidates any existing will); or
• rewrite their will after your death, changing their original wishes.

It also enables you to nominate a person to benefit from the income generated from your investments if you die, whilst protecting their capital value for future
generations.

Consider a life interest trust will if you:

• have cash assets and investments in your sole name;
• wish to take care of a specific person, but at the same time want to protect the capital value of your investments for other loved ones in the future; and
• want to protect the value of your investments for future generations.

Please note that this information is for general guidance only and should not substitute professional legal advice. If you have specific concerns, we recommend consulting with one of our legal experts.