A Will is one of the most important documents you ever create. A Will sets out exactly who you want to deal with your estate and who you want your assets and property to go to in the event of your death. There are different types of Wills that you might have heard about, and this guide is intended to help you understand this terminology.
A single Will is quite simply a Will made by one person on their own.
A single Will is usually made by someone who is not currently married or in a relationship but there is no reason why someone who is in a relationship cannot make a Will on their own without their spouse or partner. This may even be a necessity, for example, if their spouse or partner is no longer able to make their own Will.
Mirror Wills are most commonly made by couples together and are often made with the exact same terms. There can be minor variations between the Wills if you want to leave your own personal possessions to specific people.
You may come across the term ‘Joint Wills’. This is slightly misleading as everyone who makes a Will makes their own individual Will even if they are making a Will with their spouse or partner.
Property Trust Wills
Property Trust Wills generally involve you giving someone the right to live in your property, or your share of your property, if you die before them without giving it to them outright.
This is often done by spouses or partners together and is a simple and effective way of protecting your share of a property from being used to pay your spouse or partner’s care if you die before them and they need care in later life.
You may have heard these types of Wills being referred to as ‘Tenants-in-Common’. Tenants-in-Common is actually the way that you need to own a property jointly for Property Trust Wills to work.
If you make Property Trust Wills, your joint ownership of a property may need to be changed to Tenants-in-Common as part of the process.
Discretionary Trust Wills
There are various types of trust which you can create under a Will. A trust is a legal document that can help you avoid large inheritance tax charges, and you can guarantee financial stability for your loved one’s future. Common examples of trusts include testamentary trusts and living trusts.
One of the most useful in certain circumstances is a Discretionary Trust.
Under a Discretionary Trust, you leave all or part of your estate to Trustees who you appoint in your Will. The Trustees can be relatives, friends and/or professionals as you wish.
On your death, the Trustees then have the discretion who can benefit from the estate, to what extent they can benefit and when.
This can be very useful if you want someone to be able to benefit from your estate but there is a valid reason why you might not want them to benefit directly.
This could be because a beneficiary has a disability, is in receipt of means-tested benefits or care funding, has relationship problems, is bankrupt or is simply not very good at handling money.
By using a Discretionary Trust, the Trustees can manage their inheritance and postpone giving it to them until their issues have passed or for a longer term if necessary.
It is possible for a couple to make Wills together and to agree at that point that after the first death the survivor will not change their Will. These Wills are called Mutual Wills.
The idea is that if the survivor cannot change their Will, they cannot choose to exclude the beneficiaries you originally agreed should ultimately inherit.
The problem with Mutual Wills is that they are very inflexible.
After the first death, the survivor may have a valid reason to need to change their Will but they would be prevented from doing so because of the Mutual Wills agreement they had entered into.
Also, if the survivor remarried or entered into a civil partnership, their existing Will would be revoked automatically by law but the Mutual Wills agreement would still stand. This can cause massive problems for those who are left behind.
For this reason, we strongly advise against considering Mutual Wills except for very limited circumstances when they may be appropriate.
A person must have the mental capacity to make a Will.
If they do not have mental capacity, it is possible to make an application to the Court of Protection for the Court to authorise a Statutory Will to be made on their behalf.
There has to be a valid reason to request that the Court authorises a Statutory Will.
If a person loses capacity without ever having made a Will and has lived with a partner for a long time without ever getting married, a Statutory Will may be appropriate for them to ensure their partner is provided for if they die.
A Statutory Will application is a complex and expensive process.
Any people who may be affected by the application must be given notice and can agree to the application or may object to it which could lead to protracted litigation.
The person who has lost capacity is independently represented by the Official Solicitor in the process.
Even if the person who has lost capacity had made a Power of Attorney, their Attorneys have no authority to change their Will.
The best advice is to make a Will while you have the capacity to ensure that you decide what will happen rather than the Court.
Here at Taylor Bracewell Solicitors in Doncaster and Sheffield, we help our clients make the types of Wills that is most suitable for them in their own unique circumstances.
Our lawyers have years of experience in helping our clients through the process of making Wills from start to finish and also advising when it may be necessary to review their Wills should their circumstances change. If you need our help to make a Will, do not hesitate to get in touch with us today. Please contact us by filling out our online contact form here.