What Should I Put in My Will to Make Sure Everyone I Care About Is Protected?
10 minute read
A simple will isn’t always enough. Here’s how to make sure nothing important is left to chance.
Making a will is one of the most considered and caring things you can do for the people who matter to you. But knowing that you should have one and knowing what it should actually contain are two different things, and for many people, the second question is the harder one.
A well-drafted will does much more than simply say who receives what. It appoints the right people to administer your estate, protects vulnerable family members, addresses tax efficiently, and makes provision for scenarios you might not have thought to plan for. It is, in effect, a comprehensive set of instructions for managing everything you leave behind.
This guide works through the key areas that a thorough will should address. Not every section will be relevant to every person, but it is worth reading through all of them to make sure nothing important is overlooked.
Table of Contents
Executors and Administration
Appointing Your Executors
Your executors are the people responsible for administering your estate after you die. They will apply for the grant of probate, gather in your assets, pay your debts and taxes, and distribute what remains to your beneficiaries. It is not a role that should be filled as an afterthought.
The most important qualities in an executor are trustworthiness, organisational ability, and the willingness to remain neutral if tensions arise between beneficiaries. It is worth having an honest conversation with anyone you are considering before you include them in your will, to make sure they understand what the role involves and are willing to take it on.
You can appoint more than one executor, and it is generally sensible to do so. Joint executors can share the administrative burden and act as a check on one another. Two is a common choice. You can actually appoint as many as you want, although legal rules allow a maximum of four to act at any one time.
Substitute Executors
It is good practice to name a substitute executor in case your first choice is unable or unwilling to act when the time comes. Without a substitute, if your executor has predeceased you or renounces the role, the administration of your estate may be delayed while alternative arrangements are made.
Guardianship
Appointing a Guardian for Minor Children
If you have children under the age of 18, appointing a guardian in your will is one of the most important decisions you can make. A guardian is the person who will take on parental responsibility for your children if both parents have died.
Without a guardian appointment, the question of who should care for your children may have to be resolved by the family court. That process takes time, may not produce the outcome you would have chosen, and can place your children in a state of uncertainty at an already extremely difficult time.
The person you appoint should be someone you trust absolutely, someone whose values align with yours, and someone who is willing and practically able to take on the role. Discuss it with them before including the appointment in your will.
Financial Provision for Guardians
Taking on the care of children is a significant financial responsibility. It is worth considering whether your will should include a provision specifically intended to support the guardian in carrying out their role, whether through a direct gift, a trust fund, or some other arrangement. If children are to inherit through a trust, the trustees and the guardian may be different people, and it is worth thinking carefully about how those two roles will interact in practice.
Debts, Liabilities, and Funeral Expenses
Providing for Debts and Taxes
Your will should include a clear provision directing how your debts, funeral expenses, and any taxes due on the estate should be met. In most straightforward estates, these are simply paid from the general assets of the estate before distribution to beneficiaries. But in more complex situations, where there are specific gifts of particular assets, it is important to be clear about whether those gifts are made subject to any associated liabilities or free of them.
If your estate may be subject to inheritance tax, it is also worth considering the liquidity of your assets. Tax is generally due within six months of the date of death, and if your estate is largely made up of property or illiquid investments, your executors may face practical difficulties in meeting the liability on time.
Funeral Wishes
Your will can include your wishes about whether you would like to be buried or cremated, and any specific requests about the type of service you would prefer. While your funeral wishes are not legally binding on your executors, they carry significant moral weight and can help to prevent disagreement among family members at a distressing time.
If you have an existing funeral plan, your will should reference it and make clear where the relevant documents can be found. You should also ensure that your executors know about the plan in advance, since a will is not always read immediately after death and funeral arrangements often need to be made quickly.
Beneficiaries and Gifts
Specific Gifts
A specific gift is a gift of a particular asset, such as a sum of money, a piece of jewellery, a car, or a named property. Specific gifts let you ensure that particular items reach the people you intend them for, which can be especially important when sentimental value is involved.
When drafting specific gifts, precision matters. A gift of “my gold watch” is clearer than a gift of “my watch,” and a gift of a named property at a specific address avoids any ambiguity if you own more than one property. Your will-drafter should help you determine the appropriate level of detail for each gift.
General Distribution of the Estate
Beyond specific gifts, you need to decide how the remainder of your estate, what lawyers call the “residuary estate”, should be divided. This might mean leaving everything to your spouse, dividing the estate equally among your children, or setting up a more complex arrangement involving trusts or staged distributions.
Substitute Beneficiaries
Always consider what should happen if a named beneficiary dies before you. Without a substitute provision, a failed gift may fall back into the residuary estate or, in some circumstances, pass under the intestacy rules. Your will should specify a substitute beneficiary for each significant gift, so that there is a clear answer regardless of what happens.
Charitable Gifts
If you wish to leave something to a charity, your will should identify the charity clearly and precisely, ideally by name and registered charity number. A charitable gift can also have inheritance tax advantages: if you leave at least 10% of your net estate to charity, the rate of inheritance tax on the remainder of the estate is reduced from 40% to 36%.
The Family Home
Who Should Inherit or Have the Right to Live in the Property
The family home often requires specific attention in a will, particularly where it is owned jointly or where the surviving partner’s position needs to be protected. If you own the property as joint tenants with your partner, your share passes automatically to them on your death, regardless of your will. If you own it as tenants in common, your share forms part of your estate and must be dealt with expressly in your will.
Protection for a Surviving Partner
Where a property is not going to pass outright to a surviving partner, it may be appropriate to include a life interest or right of occupation in your will. This allows the surviving partner to remain living in the property for their lifetime or for a defined period, while preserving the underlying capital for other beneficiaries such as children from a previous relationship.
Life Interest and Property Trusts
A property trust can also serve an important function in inheritance tax planning. By placing your share of the home into a trust on your death rather than passing it directly to your spouse, it may be possible to preserve your individual Nil Rate Band in a way that reduces the overall tax burden when the second spouse dies.
A property trust can also offer a degree of protection against the value of the home being assessed for means-tested care fees in the future, though this is a nuanced area and professional advice is important to ensure any arrangement is properly structured.
A thorough will covers far more than most people realise. Our will-drafting specialists take the time to understand your circumstances and make sure nothing important is missed. Get in touch to find out how we can help.
Trust Planning
When a Trust May Be Appropriate
A trust within a will allows assets to be held and managed on behalf of a beneficiary rather than passed to them outright. Trusts are flexible, and they can serve a number of different purposes depending on your circumstances.
The Age at Which Children Should Inherit
Under the intestacy rules, children inherit at 18. Many parents would prefer a later age, and a will can specify any age you choose. It is common to set an inheritance age of 21 or 25, with trustees having discretion to apply income or capital for the child’s benefit in the meantime.
Protection for Vulnerable or Financially Inexperienced Beneficiaries
If a beneficiary has a disability, a mental health condition, a problem with debt or addiction, or is simply not well-placed to manage a large sum of money, a discretionary trust can be a much better way to provide for them than an outright gift. The trustees manage the assets and make distributions in a way that genuinely serves the beneficiary’s interests, without exposing the assets to risks that an outright inheritance might create.
Asset Protection Considerations
Trusts can also offer a degree of protection against assets being lost to divorce settlements, creditor claims, or means-tested care assessments. The rules in this area are complex and subject to change, and it is important to take professional advice to ensure that any arrangement is appropriately structured.
The Residuary Estate
The Residuary Clause
A residuary clause is the provision in your will that deals with everything not covered by a specific gift. It catches assets you have not specifically named in the Will, assets you acquire after the Will is made, and gifts that fail for any reason. Every will should include a well-drafted residuary clause.
Without one, any assets not expressly covered by specific gifts may pass under the intestacy rules, which is precisely the outcome you were trying to avoid by making a Will in the first place.
A residuary clause is not a minor technicality; it is one of the most important structural elements of any will.
Contingency Provisions
Alongside the residuary clause, your will should include contingency provisions that address what happens if all or most of your beneficiaries die before you. These are sometimes called “longstop” provisions, and they ensure that there is always a clear answer to the question of where your estate ends up, no matter what happens.
Inheritance Tax Planning
The Nil Rate Band and Residence Nil Rate Band
Every individual in England and Wales has a Nil Rate Band, currently £325,000, below which no inheritance tax is charged. There is also a Residence Nil Rate Band, currently up to £175,000, which applies where a residential property passes to direct descendants. Structuring your will to make full use of both allowances can make a significant difference to the amount of tax your estate pays.
Transferable Allowances Between Spouses
Married couples and civil partners can transfer any unused Nil Rate Band to the surviving partner. This means that on the second death, up to £1 million of the combined estate (including both Residence Nil Rate Bands) may be sheltered from inheritance tax entirely. Your will needs to be structured to support this outcome rather than inadvertently undermine it.
Business and Agricultural Relief
If you own a business or agricultural property, significant reliefs may be available that reduce or eliminate the inheritance tax payable on those assets. Business Relief and Agricultural Relief can be valuable, but they are subject to conditions and require careful planning. Your will should be drafted with these reliefs in mind, and in a way that does not inadvertently cause them to be lost.
Digital Assets
Planning for Digital Property
Digital assets are an increasingly significant part of many people’s estates, and they are easy to overlook in a will. Digital assets can include online bank accounts and investment platforms, cryptocurrency holdings, loyalty points and air miles, domain names and websites, digital photographs and creative works, and accounts with subscription or revenue-generating services.
Your Will should consider what you want to happen to each category of digital asset, whether it should be passed to a beneficiary, wound down, memorialised, or deleted. You should also leave clear instructions, separate from the will itself, for security reasons, about how your executors can access accounts and manage the relevant platforms. Many services have their own bereavement processes, and it is worth researching the policies of the platforms you use most.
Business Interests
Succession Planning for a Family Business
If you own a business, you will need to address what happens to your interest in it when you die. This might mean passing shares or a partnership interest to a family member, triggering a buyout under an existing shareholders’ agreement, or making provision for the business to be sold. Each of these outcomes has different implications for the people involved and the estate’s tax position.
Continuity Arrangements
Even where the ultimate succession plan is clear, it is worth considering whether your will grants your executors the authority to keep the business trading in the period between your death and the transfer of ownership. Without that authority, executors may face uncertainty about whether they can continue to operate the business, which can damage its value and create difficulties for employees and customers alike.
If you have a shareholders’ agreement or partnership agreement, your will needs to be drafted consistently with it. The two documents should complement one another, not create conflicting obligations.
Foreign Assets
Property and Investments Overseas
If you own property or investments in another country, the position is more complex. Many countries apply their own succession laws to assets located within their territory, and those laws may differ significantly from the rules in England and Wales. In some jurisdictions, forced heirship rules mean that certain relatives have an automatic entitlement to part of your estate regardless of what your will says.
The Need for Separate Wills
In many cases, the most practical approach is to have a separate will for each jurisdiction where you hold significant assets, with each will covering only the assets in that jurisdiction. This avoids the complications that arise when a single will drafted under English law is presented in a foreign jurisdiction, thereby making administration considerably more straightforward.
If you have foreign assets, it is important to take advice from a professional with relevant expertise in the jurisdiction concerned, and to make sure that your English will and any foreign will are drafted consistently with one another.
Regular Review
A will reflects your circumstances at the time it is made, and circumstances change. A will that was perfectly appropriate when you made it may no longer serve your intentions if your family situation, your financial position, or the law has changed significantly since then.
You should review your will after any significant life event. Marriage automatically revokes a previous will in England and Wales, which catches many people off guard. Divorce does not revoke a will, but it does affect how gifts to a former spouse take effect. The birth of a child, the death of a beneficiary or executor, a significant inheritance or property acquisition, and changes to inheritance tax rules are all good reasons to revisit your arrangements.
As a general rule, reviewing your will every 3 to 5 years is a sensible habit, even in the absence of a specific trigger. Keeping your will up to date is much simpler than drafting a new one from scratch, and it ensures your wishes remain current and clearly expressed.
Letters of Wishes
A letter of wishes is a document that accompanies your will and provides context for the decisions you have made. Unlike the will itself, it is not a legally binding document, but it can be enormously valuable in practice.
Explaining Sensitive Decisions
If you have made choices that some people may find surprising or disappointing, a letter of wishes gives you the opportunity to explain your reasoning in your own words. This might be a decision to leave unequal gifts to children, to exclude a family member entirely, or to make provision for someone who others might not expect to benefit.
People are less likely to challenge a decision they understand. A clear and thoughtful explanation of your reasoning can reduce the prospect of a claim being brought against your estate, and can provide important evidence if one is brought regardless.
Guidance for Trustees and Executors
If your will includes a discretionary trust, a letter of wishes can provide your trustees with guidance about how you would like them to exercise their discretion, which beneficiaries you regard as priorities, what circumstances you would want them to take into account, and how you envisage the trust operating in practice. This guidance is not binding, but it provides your trustees with a clear starting point and helps ensure the trust reflects your intentions.
Reasons for Unequal Gifts
Where gifts are unequal, perhaps because one child has already received significant financial help during your lifetime, or because one family member has greater need than another, a letter of wishes can explain the reasoning in a way that the will itself cannot. This transparency can go a long way towards preventing resentment and misunderstanding.
Putting It All Together
A comprehensive will covers a great deal of ground. For most people, working through all of the areas covered in this guide with a professional will-drafter is the most reliable way to make sure that nothing important is missed, and that the arrangements you put in place genuinely reflect your wishes and your circumstances.
The process does not need to be lengthy or complicated. A single well-conducted appointment with an experienced will-drafter, followed by a carefully drafted document, can address all of the issues covered in this guide and give you lasting confidence that the people you care about are properly protected.
Our will-drafting service is designed to cover every area that matters, from straightforward gifts to complex family and tax planning. Get in touch to arrange a consultation and find out how we can help.
Frequently Asked Questions
What should I include in my Will to protect my family?
A thorough Will should appoint executors, name guardians for minor children, specify who inherits your estate and on what terms, include provision for debts and funeral expenses, address inheritance tax planning, and consider trusts for vulnerable or younger beneficiaries. It should also include a residuary clause to catch any assets not covered by specific gifts.
What is an executor and how many should I appoint in my Will?
An executor is the person responsible for administering your estate after you die. They apply for probate, gather assets, pay debts and taxes, and distribute what remains. It is sensible to appoint two executors to share the burden, and a substitute executor in case your first choice is unable to act.
Can I appoint a guardian for my children in my Will?
Yes, and for parents of children under 18 it is one of the most important decisions a Will can contain. A guardian takes on parental responsibility if both parents with parental responsibility have died. Without this appointment, the family court may decide who cares for your children, which may not reflect your wishes.
At what age should children inherit under a Will?
Under the intestacy rules, children inherit at 18. A Will can specify any age you choose — commonly 21 or 25 — with trustees given discretion to use income or capital for the child’s benefit in the meantime. This provides greater stability for a surviving parent and a more managed inheritance for the child.
What is a residuary clause in a Will?
A residuary clause deals with everything in your estate not covered by a specific gift. It catches unnamed assets, assets acquired after the Will is made, and any gifts that fail. Without one, assets not expressly mentioned may pass under the intestacy rules, which is often the outcome a Will is intended to prevent.
What is a letter of wishes and do I need one with my Will?
A letter of wishes is a non-binding document that accompanies your Will and explains the reasoning behind your decisions. It is particularly useful where gifts are unequal, where a family member has been excluded, or where a discretionary trust needs guidance on how to operate. It can reduce the risk of disputes and help executors and trustees understand your intentions.
Can I leave digital assets in my Will?
Yes. Digital assets including online bank accounts, cryptocurrency, loyalty points, domain names, and digital photographs can all be addressed in a Will. You should also leave separate instructions about how your executors can access relevant accounts, as many platforms have their own bereavement processes.
How does leaving money to charity in a Will affect inheritance tax?
If you leave at least 10% of your net estate to charity, the rate of inheritance tax on the remainder of your estate is reduced from 40% to 36%. Charitable gifts should identify the charity by name and registered charity number to avoid any ambiguity.
What is a life interest trust in a Will?
A life interest trust allows a surviving partner to remain living in a property for their lifetime or a defined period, while preserving the underlying capital for other beneficiaries such as children from a previous relationship. It can also play a role in inheritance tax planning and may offer a degree of protection against care fee assessments.
When should I review my Will?
You should review your Will every three to five years as a general rule, and after any significant life event. Marriage automatically revokes a previous Will in England and Wales. Divorce, the birth of a child, the death of a beneficiary or executor, and changes in your assets or the law are all good reasons to revisit your arrangements.
Disclaimer
This article is intended as general information only and does not constitute legal advice. The information refers to the law of England and Wales. Tax thresholds and legal rules are correct at the time of writing but are subject to change. We recommend that you seek professional advice regarding your own circumstances.
Bio
This article was written by Stephen Rhodes. Stephen was called to the Bar of England and Wales in 1999 and brings over 25 years of in-house experience working with solicitor firms across the Manchester area, with a specialism in Wills and Probate. He now focuses exclusively on will drafting, helping his clients ensure their loved ones are taken care of exactly as they would wish.