Certain words routinely used in Wills and the preparation of Wills have precise, well-established legal meanings. Whilst we have endeavoured wherever possible to avoid the use of unnecessary 'jargon' the use of all legal language cannot be avoided and set-out below are some everyday explanations of some of the more common legal expressions to assist in the completion of your Will
'Estate' means all the property, whether real or personal, owned by a person at the time of their death. Excluded from this are assets that pass by operation of law (for example, property held on a joint tenancy), which do not form part of a person’s Estate, even though the person had rights to that property during his or her lifetime.
Similarly, rights under life insurance policies and pension plans (occupational or personal) may also be excluded from a person’s Estate if a nomination has been made for the benefit(s) to pass independently.
'Evidence of Identity": It is clearly important at the time of making your Will, or when it comes to be acted upon, that there should be no doubt as to your identity. Accordingly you will be asked for Evidence of Identity before making payment, which includes a UK passport, photographic driving licence or National Insurance number. In addition, the witnesses to your Will (you will need two who must be independent of you) will be asked to confirm your identity on your behalf.
'Executor': The Executor is the person who is responsible for making sure the terms of the Will are carried out. As part of this job, it is the Executor’s responsibility to collect in all your assets, such as bank accounts, investments and property, as well as to pay any debts and then distribute what is left to the persons named in your Will. It is a very important appointment, and your choice should reflect this. The people you appoint must be over 18 and, ideally, you should appoint two individuals.
If your Will allows for any part of your Estate to pass to a child who is a Minor (under 18 years of age) or, alternatively, you wish to make a gift to someone who is not yet 18, then the gift will be effective when they reach that age, or immediately following your death if they are already aged 18 or over.
However, if you would prefer for any such gift not to be effective until the child reaches a specified age in excess of 18, then you should contact us before proceeding further.
Similarly, situations can arise where it may be preferable, as an alternative to an outright gift, to provide for some part of your Estate to be held in trust for some or all of the children concerned, regardless of age. In these cases, your Will should make provision for the appointment of Trustees. This may be particularly appropriate if any child or children have an impairment or disability. These will normally be the same people who are appointed as the Executors, but if you wish to make alternative arrangements, you should contact us for further advice.
'Guardian': If you have a child under the age of 18, then it may be appropriate to consider appointing a Guardian or Guardians, who, in the event of your death, will assume responsibility for the child’s upbringing and affairs until they reach the age of 18.
However, the appointment of a Guardian, for example, may be displaced by anyone having parental rights. This may occur when the child’s natural parents have separated or are divorced. If you are no longer living with your child’s other natural parent, then we would recommend you seek professional advice before proceeding further.
'Joint Tenancy': Legally there are two separate and quite distinct ways in which two or more people can own property, namely, either as a Joint Tenancy or a Tenancy in Common. The terminology is confusing as it has nothing to do with tenancies and applies to freehold and leasehold land.
Under a Joint Tenancy, the owners own the whole property together and, individually, do not have a separate share in it. If one of the owners dies, the other (or remaining owners) automatically becomes the sole owner. This would be the case even if a Will had been made purporting to leave the deceased owner's share to someone other than the co-owner(s).
Most couples purchase and own their home on the basis of a Joint Tenancy, but if yours is owned on a Tenancy in Common, then we would recommend that you contact us for further advice before proceeding.
'Operation of Law': Certain legal acts happen automatically by what is known as Operation of Law. An example of this is where property is owned by two or more people on the basis of a Joint Tenancy, but not a Tenancy in Common, where the death of one of the owners results in the property automatically vesting in the survivor owner(s).
'Real Property', in general terms, means any legal interest (whether leasehold or freehold) in land or buildings, compared with 'Personal Property', which means property owned by an individual that is moveable in nature. Personal Property may either be of a tangible nature, such as a car, furniture or jewellery, or intangible, such as bank accounts and other financial products.
'Substitute Executor'It is generally desirable to appoint a Substitute Executor(s) who can then act if any Executor should predecease you or, for whatever reason, be unable to act, for example, through ill-health. Making provision for the appointment of a Substitute Executor is particularly important where only one Executor has been appointed.
'Testamentary Capacity' means the mental capacity required to make a valid Will. The test requires you to know you are making a Will and that this will not come into effect until your death. In addition you are required to understand and be aware of: