Why should I instruct a solicitor to write my Will?
One of the most important steps that you can take to ensure that your loved ones are looked after when you pass away is to write a Will.
A Will is a legal document that details how you wish to divide up your estate, who should inherit your assets and conversely, it ensures that your assets cannot be inherited by individuals that you do not wish to benefit from your passing.
Without a Will, you will have no control over how your assets are divided and your spouse or partner may lose out. You also risk your ideal guardian(s) not becoming responsible for the upbringing of your children, should both parents die. Guardians have the legal right to look after your children’s inheritance until they are of age too, so it is very important that custody is given to someone that you trust.
This article covers why you should have a Will, what happens if you do not leave a Will, the process of making a Will and the benefits of instructing a solicitor to write your Will.
Why it is important to write a Will
There are both practical and financial reasons for writing a Will even if you feel you do not have many possessions or much money. Fundamentally, writing a Will with the help of a solicitor allows your wishes to be clearly understood and ensures they are legally binding. This helps to minimise disputes and reduce stress for your loved ones following your passing. Writing a Will is a relatively straightforward process and yet, in the UK more than two thirds of people die without leaving a will.
What happens if you don’t leave a Will
There are certain laws that dictate how your money, property and possessions are divided if you die without leaving a Will. The intestacy laws decide who is entitled to a share of the deceased’s assets.
Without a Will:
- Unmarried partners and partners not in a civil partnership cannot inherit from each other which can lead to financial issues for the remaining partner, for example if the deceased was the owner of their house
- Your children may not get your ideal guardian(s) should both parents pass away
- Your assets will be managed by an executor, someone who divides up your assets after your passing, who you have not personally selected
- Your assets will most likely be divided differently to how you would have wished
Requirements for a valid Will
To construct a Will that is legally valid it has to be put in writing and signed by the person making the Will while in the presence of two witnesses who will not be beneficiaries of the Will. These witnesses also need to sign the document and once the Will is signed and witnessed the Will is complete.
Additionally, the person writing the will must be 18 years old or older, writing voluntarily and without interference or pressure from any other person and the individual must be fully aware of the implications of what they are writing and signing, including the assets and identity of the beneficiaries.
It is recommended that your Will is dated to confirm when it was signed in order to avoid confusion over which version of a Will is most recent. However, if a date is not included the Will can still be valid.
Where should you keep your Will
It is important your Will is stored in a safe place with no other documents attached to it and you should always inform your executor where it is being kept and how they can access it. Wills can be kept at home, with an accountant, with a solicitor, at the Principal Registry of the Family Division of the High Court, a District Registry or at the Probate Sub-Registry for safe keeping.
You should not store your will in a bank deposit box because the executor will not be able to access the Will. Executors require permission from the court to execute your wishes which cannot be given without your Will. This stage of the process is known as ‘probate’ and is sometimes also referred to as a ‘grant of probate’, ‘letters of administration’ or ‘letter of administration with a Will’. If your Will is lost it will be treated as if no Will was written at all and the division of assets will be dictated by the Laws of Intestacy.
The risk of leaving a basic Will
Many banks and trade unions offer basic Wills and it is also possible to write your own “DIY” Will but you run the risk of your Will not being carried out according to your wishes. If elements are not clear you can potentially leave your Will open to interpretation or complications, for example if names are spelt incorrectly. Basic Wills often do not protect your assets from a spouse or partner who has married or remarried. They might not protect your children’s inheritance in the case of a divorce or protect your grandchildren’s inheritance should your children pass away.
Ultimately, Wills are a very delicate matter. To ensure your assets are divided exactly as you wish we recommend instructing a solicitor to write your Will.
Why you should involve a solicitor
Using a solicitor will alleviate a significant amount of stress encountered by loved ones during the administration of your Will and it will be comforting to know that your Will is going to be handled correctly.
You should seriously consider using a solicitor in a number of situations where there might be complications, for example if you have children with a previous partner, or if you wish to make different arrangements for your children or specific arrangements for a disabled family member. Other complications can arise, for instance over assets held overseas or perhaps if you run a business that you wish to be included in your estate.
Solicitors will also know the ins and outs of Inheritance Tax. As an individual, Inheritance Tax currently comes into play if your estate is valued at over £325,000 but this rises to £650,000 for married couples. This threshold could rise to £1 million in 2017 because of plans detailed in the Conservative Party’s 2015 election manifesto. This could mean that the amount of inheritance tax that would be paid by your family could be reduced if this government plan is implemented.
Using a solicitor to write your Will prevents common mistakes which can be easily avoided from being made. The inheritance laws are complicated but solicitors should be fully versed with these which allow them to suggest the most cost effective solutions for each area, and because solicitors are regulated their advice should be trustworthy. Additionally, once your Will is completed solicitors should be able to offer you a safe place to store it which will usually be within a fireproof safe.
Recently there has been a dramatic rise in claims being made against the estates of people through the Inheritance Act 1975. If a person believes they are entitled to inherit part of your estate, this act allows them to make a claim for it even if they were not included in your Will. Having your Will written by a solicitor will reduce the probability of a claim against your estate being successful.
When instructing a solicitor to write your Will, you can feel safe in the knowledge that should any issues arise with your solicitor, there is a formal complaint procedure available to you. This involves raising the problem with the solicitor and if the issue is not dealt with properly you can raise your concerns with the Legal Ombudsman. Set up by the Office for Legal Complaints under the Legal Services Act 2007, the Legal Ombudsman analyse the facts from both sides of a case to enable them to accurately weigh-up each parties point. They are setup to be impartial and completely independent, even from the government.
Instructing a solicitor to write your will ensures your estate is handled exactly the way you wish. A solicitor can guide you through the entire process from the writing of the Will to executing your Will after you have passed away. Their experience and legal knowledge means solicitors can foresee and deal with any potential issues in addition to safely storing your Will, granting probate and executing your final wishes.
What you should include
Your Will should precisely detail at least four aspects:
- You should list all of your assets including your bank and building society accounts, savings, shares, property, pensions (personal and occupational), insurance policies and your possessions
- You should clearly define who your beneficiaries are, these are the people or charities you wish to inherit your money or possessions
- If you have children under the age of 18 you should state who should be their guardian(s) should both parents pass away
- Your Will should also dictate who should be the executors of the Will and therefore who is responsible for carrying out your wishes as set out in the Will
When you are thinking about writing your Will you should give these areas serious consideration. Preparing these points in advance of seeing a solicitor can save you both time and money.
Executors – solicitors can do this too.
As previously mentioned, an executor is the person who carries out the wishes of your Will. You can choose anyone over the age of 18 to perform this duty but it can a complicated job that can take several months. There are not any laws that prevent you from naming your beneficiaries as your Will executor but it is advisable to name two executors in case one passes away before you. You should always ask the person you plan on listing as the executor before writing your Will because if they do not want the responsibility you will have to amend your Will.
One of the best candidates for an executor is a solicitor, especially if you are already planning on using one to write your Will. Solicitors will not be phased by complicated Wills, as they should be familiar with legal, tax and property issues.
What to expect from a solicitor
When you consult with your solicitor they should explain your options clearly and provide you with qualified, confidential advice that puts your best interests first. Using their knowledge and experience, they will then write your Will according to your wishes, proof it for errors and ensure it is valid and signed by qualified witnesses.
A lot of people worry about the cost of receiving legal advice; therefore it is important for solicitors to be upfront with their fees and they should clearly state how their costs will be determined from an early stage in the process.
Rollingsons are respected Will drafting lawyers with the skills and experience required to manage the complicated process of writing and executing Wills. For more information or to arrange an initial consultation, please contact us on 0207 7611 4848.