Elements of a will

When you make a will, it's important to understand the different elements that make up a will, such as the testator, the executors, legacies and bequests, the beneficiaries, residuary estate, foreign assets, children and guardians.

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What is a testator?

A testator (or testatrix) is someone who has made a valid will or has died leaving a valid will. The will is a document which records how the deceased wants to dispose of their property and estate. A person who dies without having made a valid will is said to have died intestate.

What is an executor?

An executor (or executrix) is someone who carries out the administrative duties and tasks in making sure the testator's wishes are followed according to the will. This person sorts out the property when the testator dies, pays any inheritance tax due and applies for probate. You can have up to four executors in your will and they can also be beneficiaries to the will (ie they can also inherit something from the will).

It's important to appoint someone you trust as an executor as it'll be up to them to follow the instructions according to the will. When you've confirmed who your executor is going to be, it's important you record their full name and address in your will. The executor will need to be located and contacted when they are needed to fulfil their duties.

What happens when an executor dies before the testator?

Where an executor who is named in a will dies before the will is activated and before probate has been issued by the Court, provided there are other named executors in the will, then it will be their responsibility to deal with the estate. If you have more than one executor named on your will then the others would take over the deceased executor's responsibilities.

If all of the named executors have died before the deceased, then the beneficiary or beneficiaries who are receiving the largest sum of the estate in the will will have the right to deal with the estate. A maximum of four executors can act to administer an estate.

If only one executor is appointed, and they are not also a beneficiary of your will, then the situation is different. If the sole executor dies after probate has been issued by the court and before they have completed their administration of the estate, then you must find out whether they themselves had a will. If they did leave a will then it is up to the executor of their own affairs to finalise your estate (as they were your sole executor). This is called the Chain of Representation. The executor of their estate will also become the executor of your will.

If a sole executor dies and does not leave a will, then their beneficiaries who are receiving the largest sum will act as their executors. This means they will also take over the administrative duties of your estate.

Can you appoint joint executors?

Having more than one executor (ie two executors/joint executors) is possible, however you would need to ensure that they both have your best interests and will follow your wishes according to the will. Conflict can arise between joint Executors for a variety of reasons:

  • critical differences in opinion about how to administer the estate most effectively
  • action taken by one Executor without having first sought agreement of the other

What is a beneficiary?

Beneficiaries in a will are the named individuals or charities who will inherit the deceased's assets or estate. The will identifies and defines who the intended beneficiaries are and the inheritance they will receive.

A beneficiary is entitled to know that they have been named in a will as a beneficiary, along with the full inheritance they have been designated. However the beneficiary is only entitled to receive, appraise or view their inheritance after the executor has successfully applied for probate and ownership of the assets has transferred to the beneficiary.

What are legacies and bequests?

Legacies and bequests are the types of gifts or assets you want to leave to any individuals or charities. There are several types of legacies that a testator can leave behind.

Specific gifts

A specific gift is where a specific or particular named item is left as a gift in the will eg a piece of jewellery, books, paintings or antiques. A specific gift will need to be accurately described in the will so that the executor and beneficiaries will know which exact item the testator wanted to leave to their beneficiary. A specific gift won't be valid if the item in question doesn't exist as part of the deceased's estate at their time of death. In this case the specific gift is said to be 'adeemed' which means that the beneficiary will not receive any gift.

Pecuniary gift

A pecuniary gift is a gift of money. If a pecuniary gift is directed to be paid to the beneficiary in instalments, then this is called an 'annuity'.

Residuary gift

A residuary gift is when a person leaves a percentage of their estate after all the other gifts have been made by the executor and any debts and inheritance tax has been paid. The beneficiaries who will receive the residue of the testator's estate are called the 'residual beneficiaries'.

Contingent gifts

These gifts are gifts in the will made by the testator to the beneficiaries dependent upon the occurrence of an event. An example of a contingent gift is a gift to a charity which applies only if the other beneficiaries named in the will die before the testator.

What is the remainder of an estate?

Once the executor has administered the estate, gifts and paid any administrative costs, such as debts, probate and inheritance tax, any assets leftover will form the residuary (the remainder) of your estate. This is all the leftover cash, assets and property that weren't distributed according to the will. This can happen if the testator forgot to mention something in their will or intended for any 'residual beneficiaries' to inherit what was leftover.

What are foreign assets?

Foreign assets are assets which are located outside of the country in which the testator lived or created their will. Those with foreign assets are often advised to make a will dependent on where the assets are located. For further information read Making your will.

Children and guardians

Children under the age of 18 cannot inherit under a will. If a testator wants to leave a gift to a child, it will be held in a trust for them until they turn 18. The definition of ‘child’ in a will is broad and can include step-children. Therefore, in situations where children are involved, it is best to specifically name of all children (step and biological) within the will. 

It might also be appropriate to name guardians in your will to look after any children under 18 if both parents die. Without nominated guardians, the courts will decide who will look after any children. For further information read Appointing a guardian.

What is a trust?

A trust is a legal arrangement which allows for assets, such as property, to be looked after on behalf of a beneficiary. The person who looks after the assets is called the 'trustee'. The person who creates the trust is called the 'settlor'. If the settlor creates a trust during their lifetime then it's usually evidenced in a trust deed. However if the settlor wants it to be created shortly after their death then this is inserted as a provision in their will. This is known as a 'wills trust'.

Whether a trust is created during the settlor's lifetime or after their death, the trust document will state who is responsible for managing the trust for however long the trust lasts. Trustees owe a legal duty to the trust's beneficiaries and therefore must act in the best interests of the beneficiaries. Choosing your trustee must be a careful choice, taking into consideration their trustworthiness, financial responsibility and whether they have the administrative skills to manage the trust properly.

When is a trust used?

A trust is used as a way of protecting assets and controlling how they are used after they've been given away. When a settlor makes an outright gift, either during their lifetime or after their death, the beneficiary assumes all rights and control over the assets. The creation of a trust enables the settlor to attach conditions to the assets. For example, the settlor may require that the assets can't be given away during their lifetime.

Trusts are also used if an asset is being given to someone under 18 or a 'vulnerable person'. Examples of a 'vulnerable person' can include:

  • a disabled person
  • a person who lacks mental capacity
  • a person who has a medical condition, such as a gambling or drug addiction

What is a witness?

In order for a will to be valid, it needs to be signed in front of two independent witnesses. There are certain rules to follow as not everyone can be a witness to a will.

It's important that witnesses should be independent. Therefore they should not be people who:

  • are family members
  • are your spouse/civil partner
  • are beneficiaries under the will
  • is under 18
  • is blind or partially sighted
  • lacks mental capacity or sufficient understanding

People usually ask a local solicitor or their GP to be a witness. However both must be present when you sign your will. For further information read Executing your will.

Protecting people named in a will

As a result of the probate process, the will eventually becomes a public document.

To ensure that the identity of those listed in a will is protected only their names and relationship should be included within the will itself. If further information is required to identify those listed within the will, then this information should be included in a letter or annexure which is stored along with the will.

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