End-of-life planning is often hard to do and easy to put off. Many people find it challenging to think about making a Will as it can raise some difficult issues and questions.
We explain the very real benefits of making a Will and it also outlines what the process is likely to involve. We also outline some of the consequences of not making a will. We hope to demystify Will writing for you.
We also debunk some common technical terms at the end of this note, see under Terminology.
Do I need a Will?
In all likelihood, the answer is yes, for the vast majority of adults.
It is true that more than half the adult population of the UK do not have a Will in place. This may be partly explained by the fact that a substantial number of adults have few if any possessions to pass on. Others, might have relatively straight forward circumstances and a modest estate that might, more through luck than design, be adequately served by the rigid statutory rules of succession that apply where someone dies intestate. The statutory provisions are set out in The Administration of Estates Act 1925 (as amended by the Inheritance and Trustees Powers Act 2014).
However, for those left behind, the distressing experience of having a loved one die and then finding that they failed to make a will, can be the cause of considerable anxiety and uncertainty.
Without a will, your loved ones will have to apply to the Probate Registry to appoint administrators to sort out the estate according the rigid statutory rules. This can often make an unhappy task a thankless, expensive and distressing one. It can also result in better feuds and disagreements.
Surely this is not a legacy you would wish to risk bequeathing to your loved ones.
There are other, even more compelling, positive reasons for making a will, especially if you own some property or investments. A will enables you to express your love and appreciation by demonstrating that you have taken the time and trouble to appoint executors and trustees and to make suitable and appropriate provision for each beneficiary so as to maximise the benefit they will receive from your legacy. Our role is to help you achieve this.
See below under What are the benefits of making a will?
See also under what happens if I die without making a will?
What are the benefits of making a Will?
There are many benefits to making a Will. These include:
- giving you control by ensuring you do not die intestate—this means that your assets pass to those you intended (and are not dictated by general intestacy rules) and that your estate is administered by people you choose (again, not dictated by intestacy rules)
- ensuring you have appointed executors which makes it much easier and quicker to administer your estate
- ensuring that the people who matter most to you are looked after if you die—this is particularly important if you have young children or if someone vulnerable is dependent on you
- helping you focus on and think about what your assets and liabilities may be if you die—this helps you put your affairs in order today and allows you to think about what assets and liabilities may arise on your death and who these pass to (eg life insurance or pension benefits may be payable on your death)
- ensuring your estate and what you leave behind is maximised by using tax planning and tax reliefs appropriately, particularly in relation to inheritance tax (which is the main tax to consider when doing your estate planning)
Inheritance tax is essentially a tax charge on the value of your assets when you die. There are a number of well-known reliefs and exemptions (such as the spouse exemption, where leaving your estate to your spouse means there is no inheritance tax payable). The inheritance tax charge is usually paid out of your estate by your executors when they are administering it.
However, the application of inheritance tax rules is not straightforward. As set out above, a significant benefit of getting a professionally drafted Will is ensuring that you leave your estate in such a way so as to minimise any inheritance tax charges (or other tax charges).
- ensuring (either through the Will itself or in a supplementary document) that some other very important matters are dealt with, specifically funeral wishes and appointing guardians if you have young children
- securing benefits which arise in relation to particular assets you may have, for example:
- a foreign property (eg if you have a home abroad, it will be important to establish how and to whom this will pass on your death and to ensure to the extent possible this is in accordance with your wishes and not local law)
- business property (eg if you are a company or business owner, preparing a Will would allow you to consider and plan the succession to the business (so that it does not have to be sold following your death), as well maximise any possible tax reliefs for passing the business to the next generation)
- farming or agricultural land (as above, if you own or manage farmland a Will would allow you to do succession planning and also maximise tax reliefs)
- allowing you to make gifts to particular people or charities/organisations that are important to you
- allowing you to the opportunity to discuss your estate planning with your family which will significantly reduce the prospect of disputes arising after your death
What happens if I die without making a will?
When a person dies without making a will this is known as intestacy.
Without a will, your estate cannot be administered or distributed promptly as no one will have been appointed was an executor. Accordingly, your loved ones will be forced to incur the cost of making a formal application to the Probate Registry for Letters of Administration to acquire the legal right to sort out and distribute your estate.
The process of applying for Letters of Administration is sometimes the cause of bitter legal disputes. Even where there is harmonious agreement, the process of obtaining this authority is likely to cause significant delays (preventing timely financial assistance to those in need) as well as avoidable expense and significant additional distress and worry to those closest to you.
If you die without making a will your estate will be distributed according the rigid statutory rules of intestacy. This can lead to disastrously unexpected and unjust outcomes.
You will have lost the right to decide how and to whom your estate is distributed. You will also be deprived of the pleasure of passing on specific gifts and heirlooms to your nearest and dearest.
Even relatively modest estates can benefit significantly from estate planning that can preserve the estate and minimise its exposure to tax.
How do I choose the right kind of will writer?
You may also be asking yourself whether your Will needs to be prepared by a solicitor (given the cost involved) or whether you should use a more ‘DIY’ option such as buying a pre-printed will in a book shop or completing one online using an unregulated and unqualified provider.
Almost without exception, a professionally drafted Will is likely to be your best option. Not only can you be confident that your estate will pass according to your wishes and instructions, but you will be guided in thinking about your assets and family circumstances to ensure that all matters, including minimising your estate’s liability to tax, are all appropriately dealt with.
The form and scope of a DIY Will is likely to be limited and standardised. If your estate is small and your testamentary wishes are uncomplicated then this route might be adequate. Unfortunately, without independent legal advice from a qualified professional, you will never quite know. The question here is why would anyone leave this to chance.
In our experience, every will is as distinct as the individual client making it.
Some of our clients require only the simplest of wills and our charges reflect this fact. We offer fixed price wills at a very competitive rate with our Basic Professional Wills service. Others have slightly more complicated requirements that we can also accommodate this in our fixed pricing, with our Standard Professional Wills service that benefits from our extensive resources and precedents, making only a modest charge. Yet others, who have large or complicated estates or involved trusts and dependencies to cater for, require more input. Here again, our charges are highly competitive. In every case, you will be given either a fixed fee quotation or an estimate of the likely costs involved.
Accordingly, unless your testamentary needs are straight forward your estate is likely to benefit significantly from having one of several hundreds of potentially relevant clauses or provisions being inserted or modified, or by the adoption a particular type of Will. For example, an increasing number of clients choose to instruct us to set up a trust in their Will to ensure for asset protection or flexibility purposes. This kind of work requires the legal expertise of a legal professional to identify the issues and then to implement your wishes through careful drafting.
Without the input and expertise of a legally qualified professional, such as a solicitor or barrister, you might easily fail to leave your estate in the most appropriate, secure and tax efficient way, or worse still, produce an invalid will or gift.
It is in the nature of a will that it is almost always too late to rectify an oversight or error by the time the Will is needed. This is why its provisions need to be crafted with meticulous professional attention and care.
Insurance provides another reason to instruct a qualified legal professional. Even in the best of run businesses, human nature being what it is, a drafting error or perhaps some irregularity in signing and witnessing formalities might invalidate a gift or even the entire will; what then?
One substantial advantage of employing a solicitor is that that we are part of a highly regulated profession. Solicitors are obliged to always act in their client’s best interests and to own up to an error. We are obliged to adhere to strict codes of ethical professional conduct and to implement clear and transparent complaints procedures. On top of this, we are obliged to take out professional indemnity insurance to ensure that we are able to compensate our clients for any losses caused by an inadvertent oversight or error on our part. There are few if any such obligations or quality assurances (or indemnity cover) to be had from many if not most commercial Will writing business, however ‘professional’ their promotional literature may assert them to be; still less from retailers of a pro forma Wills.
What is the cost involved in having a will prepared for me?
Pre-printed standard wills forms were first introduced by enterprising book shops in the mid 19th century. Nowadays there are numerous do it yourself guides on will writing that you can purchase either online or in a bookshop. These currently retail for as little as £20 or £30. If you have a relatively modest estate and your testamentary requirements are uncomplicated, then this might be an adequate solution.
There are also an increasing number of automated will writing services are now accessible online from various commercial bodies. These products retail for only a little more, starting from £50 upwards. These mass market suppliers are unlikely to be qualified legal professionals, so the quality and suitability of their product cannot be guaranteed. Even so, for many people, these unregulated service providers can offer a good enough service where there testamentary needs are uncomplicated.
However, one of the dangers of making a will with an online DIY wills supplier is that they are not independently regulated or properly insured Some are run by foreign based companies. Accordingly, these providers may not be skilled enough to provide the quality assurance one has a right to expect of a qualified legal professional and if something goes wrong neither you nor your estate is likely to receiving adequate recompense. Added to these factors is that their customers are usually left to their own resources when it comes to signing and witnessing a will. The slightest procedural error in a will’s execution can leave to the entire will being deemed invalid.
Our policy is always to put our client’s interests and needs first. Accordingly our charges for making a will are as inexpensive or costly as the circumstances require: no more; no less.
We are a long established reputable law firm which has the expertise and experience to help you decide for yourself whether you would be better served by our standard will service or whether a more complicated will is needed.
Whatever the price, there is one saving you cannot afford to make and that is the cost of accessing our expert advice and guidance when making your choices.
Do I need visit a solicitor in person?
The short answer is no.
However, we are always happy to meet our clients in person or remotely online.
Some standard wills can be prepared without the need for any meetings. We are well practiced in asking the right questions to identify your testamentary needs and wishes.
We recently advised an expat client living in Crete on her English estate before drafting and later administering the signing and witnessing of her will without any physical meeting. We even set a new legal precedent nationally, later sanctioned by the government, by conducting all these arrangement online using video technology.
Thanks to our ground breaking legal research and innovation, distance no longer presents an obstacle to your accessing our services. We can save you the time, expense and inconvenience of travelling to our offices. With internet access, you can enjoy a face to face consultation with us wherever you are in the world..
What is involved in instructing a solicitor to prepare my Will?
If you decide to instruct Broomhead & Saul to prepare your Will then, broadly speaking, it is a three stage process will be divided into taking your instructions, drafting the Will and then signing it in the presence of witnesses.
1. Taking instructions
Once you have identified the firm you wish to use, the process will likely start with a meeting. This often takes place at one of our offices or sometimes in a client’s home. This firm led the nation in 2020 by developing the first remotely executed will in the country. This was undertaken by an innovative use of online video conferencing.
This first meeting, whether this be in person or remotely, is used to consider your estate your personal circumstances and wishes fully to enable our expert lawyers to advise you on the appropriate form of your Will. You can prepare yourself for this by considering the information contained in the Schedule set out below or in our client questionnaire that we provide.
The other reason that a meeting is useful has to do with validity of the Will. There is little point making a Will unless it is a valid Will. There are a number of strictly enforced legal requirements that must be met if a Will is to be accepted as valid and enforceable.
For example, a Will is not valid if the person making it has or is starting to develop mental capacity issues. This is because a Will is only valid if (amongst other requirements) the person making understands fully what they are doing and what effect it has.
Another example of where a Will is invalidated would be where the person making it is under pressure from someone else to make their Will and leave their assets to a particular person (this is known as undue influence). A meeting with the solicitor or will allow them to assess and confirm that there are no circumstances which would prevent the Will from being completely valid.
2. Drafting the Will
Once the solicitor has advised you on the options and taken your instructions fully, they can prepare a draft Will which you can review. In order to give full instructions and prepare yourself for the sort of information that your solicitor or will need, you should consider the items listed in the Schedule and or to complete the questionnaire.
It is possible that some further calls, meetings or discussions may need to be had during the Will drafting process. This will depend on the complexity of your estate and your personal circumstances. For example, it may be advisable for you to have discussions with potential beneficiaries or those who may not benefit in order to reduce the possibilities of disputes later. Another example is where you have foreign property and some local law advice may need to be obtained to ensure all your assets are dealt with appropriately, or where you need to speak with potential executors of your Will to ensure they would be happy to act as such.
3. Signature and storage
Once you are happy with the draft Will, a final signing version is prepared. Ideally, you would sign this at the solicitor’s office to ensure that all the formalities for signing the Will are met. Again, if the signing formalities are not followed precisely, this can lead to the Will being invalid. For example, one of the formalities requires there to be two independent witness present who both witness your signature and they then sign the Will (as witnesses) themselves in your presence. Signing the Will at the office of the person who prepared it is helpful in ensuring all the formalities are met. Alternatively, a Will may be sent to you with specific instructions to make sure you sign it properly at home.
Once the Will has been signed, the original is stored by us for free, for as long as it is necessary. If you decide not to appoint this firm as your executors, we reserve the right to make a modest administrative charge, simply to cover the cost of retrieving the will and satisfying ourselves that it is released to the right individual. Alternatively, you may decide to store your Will at home and you will be given safe storage recommendations. In either case, you should keep a copy in an accessible place, and those who need to locate your Will (your next of kin or your executors) should know where to find a copy and the original. This will be particularly important if your Will contains funeral wishes, as these will need to be quickly ascertained on your death to ensure they are followed in time.
Another alternative is storing your Will with the Probate Service (which is run by HM Courts &Tribunals Service).
We recommend that you also register your will in a national register of wills.
Is it necessary to regularly review and update my Will?
Once your Will has been signed, this will give you peace of mind that your estate will be dealt with according to your wishes.
It is a good idea to review your Will at least once every five years in order to ensure it still accurately reflects your wishes. For example, many things may change between the date of your Will and the date of your death from your personal and family circumstances to your asset base.
In particular, if you get married after you have made your Will (and the marriage was not contemplated at the time), this will automatically revoke your Will and you must ensure that you prepare a new Will. If you get divorced, it is also advisable to prepare a new Will to reflect your changed family circumstances.
It is also important to remember that inheritance tax rules can and do change. It may be advisable for you to involve the solicitor who originally drafted your Will so that they can advise you on whether there have been any changes to the law which would result in a different inheritance tax outcome than the one anticipated when the Will was drafted. Once a Will has been drafted, it is not usually the obligation of the draftsperson to keep you up-to-date with any changes, which reiterates the need to seek professional advice when the time comes to review the Will.
Some jargon busting
You may find the following table useful to help you understand some terms that are frequently used in Will drafting.
|Testator||You, the person making the Will.|
|Estate||All of your assets (the property you own or have a right to) and possessions whether on your own or with someone else, as well as any debts or liabilities you have (for example, credit card debt or a mortgage) (the liabilities will reduce the value of the assets to leave a ‘net’ estate).|
|Executors||These are the people who will collect in and look after your estate (ie establish what assets you have and ensure liabilities are settled), pay any inheritance tax and distribute your estate according to the terms of your Will.|
|Beneficiary||This is a person who stands to benefit from your Will.|
|Residuary estate or residue||This is the amount or assets left of your estate (often it is the bulk of your estate) after gifts have been made, debts settled and tax paid.|
|Intestate or intestacy||Dying without a valid Will in place, with the result that intestacy law (ie a set of prescriptive rules) will determine who gets what from your estate.|
Ilminster office: 01460 57056
Contacts: Angela Clapp