Seven things not to put in a will

Categories: News

A will is a vitally important document as it sets out how your assets are dealt with after your death. No-one likes thinking about their mortality, but a will is the only way to guarantee that your money and belongings are distributed how you wish.

Everyone should have a valid will and it’s a good idea to revisit it regularly to ensure circumstances haven’t changed.

As well as offering peace of mind, a well-drafted will can reduce the amount of Inheritance Tax your beneficiaries have to pay and decrease the possibility of disputes.

There are, however, a few things you shouldn’t include in a will. Here, Head of Wills and Probate Fiona Mainwaring explains.

1. Anything particularly sensitive

A will becomes a publicly-accessible document if the estate requires probate. This is likely to be the case if the assets include property.

It is important to be mindful that the will could be read by anyone. For this reason, it’s wise not to include anything particularly sensitive.

This could include combinations to a safe or, more commonly in today’s world, digital keys for cryptocurrency.

Digital assets can be left in a will and it is important that clear instructions are provided so that people can access them – but these instructions must not be in a will, or you are leaving yourself open to theft. Instead, leave the access directions in a safe place or with your solicitor.

2.     Funeral arrangements

Many people want to have a say over their funeral arrangements, for example whether they wish to be buried or cremated – but the will is not the right place for this. In fact, this is the only part of a will that is not legally binding.

The main reason for this is that funeral arrangements are usually made before the will is released, so the chances are your requests won’t be seen until it’s too late.

Instead, discuss your funeral wishes with your next of kin or executors and leave a written note with the key points.

3.     Anything you don’t own outright

It might sound obvious, but you’d be surprised how many people make the mistake of listing property they don’t actually own.

This includes items bought on finance agreements, such as cars or high value electronics. If this is the case, they are not legally yours to gift and cannot form part of the will. They will usually have to be returned to the finance provider upon death.

4. Comments or explanations

If you have made the decision to leave people out of your will, that is your prerogative (to an extent) – but don’t fall into the trap of using the will to state your reasons.

Not only will personal messages cause feelings to be hurt or even disputes amongst surviving family members, but your comments or explanations might also not be legally enforceable and could ignite confusion.

If you do disinherit someone who could reasonably expect to benefit from your estate without a valid legal reason, it may be challenged in court. Ultimately, this could lead to a lengthy and costly legal battle – and your comments are unlikely to help.

To ensure your assets are distributed as you wish, a will should be clear and concise, simply stating where you wish particular property to go. A separate letter of wishes or a statement can accompany the will to guide the executors. This document will not be made public after probate.

The creation of a trust can also be considered as a way of offering greater flexibility and privacy over the distribution of assets.

5. Conditions

It’s not illegal to try to impose conditions to gifts in your will – though we’d strongly advise against it.

For instance, conditions stating your grandchild should not inherit a lump sum of cash until they reach 18 might be sensible enough, but stipulating that your brother should only receive your beloved Porsche 911 if he doesn’t marry Cindy is not reasonable and unlikely to stand up in court if challenged.

Conditions risk disputes which could be a real headache for your loved ones and, ultimately, delay the distribution of your assets.

6. Jointly held assets

If you are married or have a partner, the chances are you will have joint assets together, most likely a property or a bank account.

Property that is held jointly is covered by survivorship rules, meaning is goes directly to the surviving partner, irrespective of what it states in the will.

Things like life insurance policies and pensions will also already state the beneficiaries upon death so, again, there is no need to cover this in the will.

7. Precise explanations

Many people think they need to be precise in a will, but this is not the case. For example, you might state that you want to leave your family home, 12 Willow Walk, to your partner – but that house might not be under your ownership by the time you die.

Another common mistake is to name the benefitting children. For example, someone might write “I leave all assets to Patricia and Mark”. This can be problematic if another child is born, who would not receive anything under the existing will.

These issues are easily avoided by being less precise. For example, you could say “I want all of my assets to be divided equally between my surviving children”.

At ORJ we have the expertise and knowledge to assist and advise you regarding these sensitive matters and we can also deal with Probate and Estate Administration and Court of Protection work.

Contact us today on 01785 223440 or team@orj.co.uk