Making a Will: Key Points to Consider

>Avoid do-it-yourself will kits. Even if you think (perhaps wrongly?) the distribution of your estate is extremely simple, you should not choose to write your will without expert legal advice and support. You need to be sure your will is legal. Did you know, for example, witnesses to the signing of your will must be over 18 years of age and cannot be people (or married to people) who will inherit anything from you?

Do not assume unmarried couples have the same legal rights as married couples.If you are a so-called ‘common law spouse’, living (or ‘cohabiting’) with – but not married to – your partner, you should not believe you have the same rights as a legally married spouse. In fact, you might have no rights (regardless of how long you have been living together) unless you have separately and legally secured that protection through, for example, a will. If you die without a will (‘intestate’), the rules of intestacy dictate your assets will pass automatically to your closest blood relatives, not your ‘common law spouse’. As a result, your partner might be left in financial trouble at a time of emotional distress.

Choosing the right executor is important. (The executor is the person you appoint to carry out the terms of your will.) Do not, for example, make your spouse your sole executor as you must assume you might both die at the same time. Despite the difficulty of imagining tragic events ahead, you must prepare for the worst. On which note, you should also appoint a guardian to look after your children, in the event of the death of you and your spouse, until the children reach the age of 18. The appointment of a guardian needs to be made in writing, signed and dated, and is therefore suitable for inclusion in your will.

Remember your will does not necessarily supersede all other documents. You might, for example, basically say in your will you leave ‘everything’ to your son, but have you forgotten the life insurance policy you created years ago, naming your wife (perhaps now ex-wife) as a beneficiary? Insurance proceeds left to a named beneficiary do not form part of your estate.

You must not casually change your signed and witnessed will. If you want to update your will, you need to make an official alteration (called a ‘codicil’) or make a new will. Codicils must also be signed and witnessed. There is no limit to the number of codicils you can add to a will.

Too often,wills are actually unsuitable for their needs but those inadequacies and oversights only become apparent after their death. If you have any concerns about your will, contact an estate planning solicitor now. Solicitors can also help you with your role as an executor.