The Will

A Will is a legal document that specifies how you want your personal assets to be administered and distributed after your death.

In most cases Wills are prepared by a lawyer or trustee company and held by them in safe-keeping. The person who has died will usually have a copy of their Will amongst their personal papers.

After the funeral the estate’s lawyer will arrange to meet with the executors to discuss the Will and make sure they understand it. The lawyer may have emailed or sent it to the executors beforehand, just so everyone is familiar with it. If any of it is unclear the executors should ask the estate lawyer to explain it to them.

The executors have a strict duty to administer the estate in accordance with the requirements of the Will, unless:

  • The court orders otherwise (see Claims against an estate), or
  • All of the beneficiaries are adult and able to direct the trustees to do something different (this needs to be recorded in writing).

There are a number of standard clauses which appear in most Wills:

  1. Cancel all earlier Wills: in order for the court to approve probate, it needs to be clear that any earlier Will has been cancelled or revoked.
  2. Appoint executors and trustees: these are the people who will administer the estate and carry out the terms of the Will (there may be only one person or there may be several who are executors).
  3. Specific gifts of money (legacies) to named people or bequests to charities or other organisations. There may also be specific gifts of various items, for example, a gift of furniture and household items to be divided among the family.
  4. There should be a clause saying what should happen to the rest of the estate (sometimes called the ‘remaining estate’ or ‘residue’) after payment of the funeral costs, taxes and other liabilities.
  5. There will usually be some further clauses setting out the powers and authority the trustees have to administer the estate. Although the law gives executors some automatic rights, these are restricted and many Wills will have this set out more fully.

In addition, the Will may have other clauses such as naming a guardian for any children who are under-age, and directions about a funeral or cremation. The executors have a duty to ensure the deceased is buried or cremated; and they should usually take into account the directions stated in the Will, although these aren’t legally binding. Although the family or close friends usually organise the funeral, the executors are responsible for ensuring appropriate funeral arrangements are carried out.

Keeping everyone informed

Despite what you may have seen in the movies or on TV, there’s no legal formality known as the ‘reading of the Will’. There’s no requirement for the estate lawyer or anyone else to do this and many families don’t want this to happen.

The estate beneficiaries are, however, entitled to be kept informed about the administration and the progress of the estate. The beneficiaries who will receive a share in the remaining estate will usually be given a copy of the whole Will.

Beneficiaries who are simply to receive a bequest of a particular item or a legacy of a specified sum of money will usually be told what is said in the particular clause relevant to them, and aren’t usually given a copy of the entire Will.

Trusts created by a Will

Sometimes trusts are created by a Will: these are known as 'testamentary trusts'. Quite often the terms of the Will can mean that part of the estate has to be held on trust for a particular time. An example is where part of the estate is left to under-age children. Unless the Will directs otherwise, this must be held on trust for them until they reach the age of 20.

Another type of trust that is sometimes seen in Wills is what’s called a ‘life interest trust’. Common examples are:

  • The right for a named person to live in the deceased’s home for a specified period or until the person concerned is no longer able to live there.
  • The right to receive the income or interest from a specified amount of money or particular investments, for example, the rent from a particular property. This arrangement can continue during the lifetime of the named person.
  • The Will may set aside an amount of money or investments to be held on trust for a named group of people (possibly the deceased’s young children or grandchildren) and this may be used for their education or other needs.

The beneficiaries have a right to be kept informed during the course of the estate administration. In the case of beneficiaries aged under 20, their parent or guardian should be kept informed.

The law also lays down strict requirements for funds to be invested as a prudent person would invest when looking after someone else’s money. Appropriate advice should be obtained if there is a large amount to be held on trust or it is to be invested for any length of time.