Guide to deciding what type of will you need
You may not realise it, but when it comes to making a will there are different types to choose from and, as Cathal Murray, wills and probate specialist with James McNulty & Co. Solicitors in Omagh, County Tyrone explains, the right type of will for you will depend on your circumstances.
Making a will helps to ensure that when you die your assets go to the people you want them to, but there are various wills available to cater for your needs, these range from wills designed for couples who share a vision about how their assets should be dealt with, to those intended for armed services personnel about to embark on active military operations and who do not have the time to comply with all the usual legal requirements needed to make a conventional will; there are even wills that can be created by the court for people who have lost the mental capacity to make a will themselves.
A wills specialist can help you to decide which type of will is right for you.
A standard will is a relatively straightforward document which sets out who should receive any money, property or personal items that you own at the time of your death, once any debts or liabilities have been settled. This type of will tends to be suitable for people with relatively uncomplicated financial and personal affairs.
To make a standard will, and indeed most other types of will, there are certain legal requirements that need to be met, including:
- being aged 18 or over, and of sound mind, at the time the will is prepared;
- having the terms of your will recorded in writing;
- signing your will, or getting someone to sign it for you if you are unable to do so, and doing this in the presence of two independent witnesses;
- making the will voluntarily and without pressure from anyone else; and
- having full knowledge, and giving approval, of what the will says.
A specialist will may be appropriate in circumstances where provision over and above that typically found in a standard will is required to carry out your wishes in the most effective and efficient way possible. For example, where guardianship arrangements for children need to be considered or the creation of a trust is required to drip feed money to a vulnerable relative. A specialist will is also required where your wealth exceeds the rate at which inheritance tax becomes payable, and therefore tax planning advice is required.
This type of will must comply with the legal formalities required for a standard will, but will be accompanied by other supporting documents needed to give effect to your wishes.
A mutual will is suitable for two people who share a close connection and an agreed vision for how their assets should be distributed on their respective deaths. This type of will is common among married couples and civil partners who want to ensure, for example, that when one of them dies the other automatically inherits everything, and when the second of them dies everything then passes to their children or some other agreed person or persons.
Once made, a mutual will cannot be revoked without the agreement of both of the original makers. This type of will is therefore popular among people who want to ensure that their money stays within the family and is not diverted elsewhere, for example in the case of the surviving spouse remarrying.
Mirror wills are two separate, but often near identical wills, made by people with a close connection to one another, and are particularly common among married couples, civil partners and couples who have lived together for a long time. In many cases the provisions of these wills are similar to those described for mutual wills, so everything is left to the surviving spouse or partner initially and is then passed on to any children or other agreed beneficiaries. However, the key difference between mirror wills and a mutual will, is that because each will is prepared individually there is nothing to stop one individual deciding to change the terms of their will at any time, and where this happens there is no obligation to inform the other person that this has been done.
Mirror wills, therefore, cannot guarantee that initially agreed arrangements will not be subject to change at some point in the future
A privileged will is a special type of informal will where the usual legal formalities needed to make a will are dispensed with.
The ability to make a privileged will is reserved to members of the armed forces and associated support personnel who are already, or are about to become, engaged in active military operations, and to mariners and merchant seamen who have departed, or are about to depart, on a voyage.
Importantly, in the context of armed service personnel, there is no need to be aged 18 or over to make a privileged will.
A statutory will is a special type of will, made by the court on behalf of someone who is unable to make a will for themselves, for example because they have been involved in an accident or have otherwise lost mental capacity. To make a statutory will you need to apply to the Office of Care and Protection who will decide what the terms of the will should be, taking account of the money available, the people who should potentially benefit and any known wishes of the person on whose behalf the will is being made.
When making a will it is also worth considering making a letter of wishes to explain why certain decisions about inheritance have been made or to confirm how you want matters to be handled after your death. It is also usually prudent to make an enduring power of attorney (EPA) and advanced decision alongside the will, to ensure that if you lose the mental capacity to make decisions for yourself while you are still alive, someone you know and trust is appointed to make them for you and that your views on life sustaining treatment are respected.
For a confidential discussion about making a will or updating an existing one, or for any other trusts, estate or probate matter, please contact Cathal Murray on 028 8224 2177 or email firstname.lastname@example.org.