What is a Will?
A Will is a legal document that should state what you wish to happen to your money and your minor children when you die. English law allows you complete freedom to give what you have to however you want , so long as you are of sound mind when you make the Will and you execute it (sign it in front of two independent witnesses) in the correct manner. It is possible for some categories of people to challenge a Will that disinherits them, but that does not mean that they will necessarily get anything at all, save perhaps a hefty legal bill.
Do I need one?
If you own nothing, have no children, live alone and live on benefit then you do not need a Will, but if you own a property or have savings or have minor children, or live with someone then it is always advisable to have a Will saying who should get what when you die.
Some Common Avoidable Problems:
Joint tenants may want to sever a tenancy to ensure their share passes to a particular person or class of persons (often to children instead of the spouse) and if so will need a Will to pass their severed share to the intended recipient(s) – or it will be dealt with by the intestacy rules (and automatically pass to the spouise) – which is probably exactly not what they wanted to happen when they decided to sever;
Cohabiting couples have no claim on each other’s estate until they have lived together for two years – and then they may have to sue their deceased partner’s family to secure some money from the estate unless they are joint tenants and or have Deeds of Trust in place; it is only a ‘claim’, not a right and they may sue and still get nothing.
If a husband and wife die together, property passing by survivorship will pass to the relatives of the younger spouse. Few people like to think that their mother-in-law will inherit their house while their own family gets nothing in these situations.
If you do not appoint testamentary guardians for minor children in your Will then the social services can get involved and in extremis place the children in foster care while they decide where the children will live.
The New IHT 400 forms require that if the address of the deceased at the time of death is not the same as the address on the Will full disclosure of the sale and purchase prices of all properties from the present one back to the one in the Will. This is to track capital injections and disposals as people up or down size houses, but some clients with estates near or above the IHT nil rate band thresholds may prefer not to have to provide this information the HMRC and can avoid the issue by making a new will with their new address on.
Do I need a solicitor to draw it up for me?
Panorama exposed some of the potential risks of not using a lawyer when drawing up a Will. Will writers are not regulated, may not be insured and if anything goes wrong consumers have little protection. To make matters worse, it isn’t the person who commissioned the Will who suffers the consequences of the incompetence or malpractice, it’s the loved ones to whom they bequeathed their estate.
Go on the internet and you’ll find plenty of DIY Will kits and guides telling you how to make a Will yourself. For people on a tight budget, saving money by cutting out the lawyer very tempting, but it’s usually a false economy because it is more likely that something will go wrong and when it does there is no safety net or fall-back position.
Lawyers are regulated by the Solicitors Regulatory Authority, are fully insured and covered by the Solicitors’ Compensation Fund, which protects consumers if mistakes are made.
Finding the Will
When someone dies you need to find the Will, if there is one. You may not know if there was one or you have found a copy of a Will but do not know whether that Will has been replaced with a later one, or where the original Will is.
How we can help
- Consider if you need a Will at all
- Take instructions on what you want your Will to do and then examine in detail whether what you want is possible, practical, the likely consequences and alternative solutions
- Draw up your Will putting into effect your particular wishes after taking into account the above
- Discuss and test your capacity to make a Will
- Advise on possible claims and challenges to the Will
- Advise on the selection of executors, trustees and guardians for minor children
- Agree to be appointed as your executors
- Advise you on the current inheritance Tax liability
- Suggest ways that you can reduce or avoid this liability and the possible benefits and disadvantages of each method
- Advise on trusts in the Will for spouses, minor children, adult children under and over 25, persons under a disability and tax efficient trusts
- Help to locate a missing Will, or take the necessary steps to prove that all reasonable efforts have been made to locate the Will.
- Determining who are the appropriate persons to be appointed as the Administrators if there is no Will.