Making a Will: what to think about

06/01/2020
Author: Judith Bromley

Now the celebrations of Christmas and New Year are over, many people will turn their thoughts to the year ahead. Plans for diets, fitness regimes, holidays and moving home are just some of the best intentions we start the year with.

But one thing that many people leave off the ‘to do’ list is to make a will. While it’s not as exciting as booking a cruise, a will is probably one of the most important financial decisions you’ll ever make.

Research carried out by Royal London revealed that 54% of the adult population doesn’t have a will. For me, as a solicitor, this is a very scary statistic.

A will is an incredibly important document. Without it, you’ll die intestate which means that you won’t be able to choose who you want to inherit from your estate, exclude those you don’t want to benefit from your death or even nominate those who you would want to look after your children. Instead, the government will decide on all these things and more for you, which may or may not correspond with your wishes, so you should never underestimate the power of a will.

There’s often a misconception that making a will is an expensive, time consuming process, but the cost of applying for a grant of probate – obtaining the legal authority from the court to deal with a deceased person’s financial affairs – is far more expensive. It’s also something that your loved ones would have to do after your death which only adds to the stress and heartache they’ll already be going through.

Planning your future in this way could be viewed as a little morbid, but the reality is that death is coming to us all, so it’s sensible to make arrangements in order for you to be able to choose who you want to benefit from your passing.

A good solicitor will put you at ease and explain the process in plain English so that you’re not overwhelmed or confused by any of the legal terms. You’ll also have peace of mind that your solicitor will be regulated by industry bodies, such as the Law Society and the Solicitors Regulation Authority.

Some solicitors specialise in older client law and are trained to deal with the specific requirements of older people. They may also be able to visit you at your home to take instructions if you find it difficult to get out.

Make sure you give your solicitor all relevant background information, such as whether you’ve been married before, if you have any children, whether you’re widowed etc. All this information will help your solicitor to outline your options, explain any inheritance tax implications or whether the will needs to include a discretionary trust.

If you’re planning on disinheriting any of your children or family members, make sure your solicitor knows about it so they can account for it when making your will. There are a growing number of successful claims made by children who have contested a will under the Inheritance Provision for Family and Dependents Act 1975. If your will is challenged, a judge can make an informed decision based on your explanation as to why those people have been left out of your will. If you don’t do it, a judge doesn’t have any evidence that you consciously made this decision and could potentially overturn your will.

There’s a lot to think about when making your will; here’s a list of the main points you should consider:

Who will write it?

Unlike some will writers, solicitors are regulated and have a duty of care to act in your best interests. Whilst cheap, online or DIY wills can often cause problems further down the line because they only allow you to draft the most basic of wills. Anything a little more complicated can lead to the will being invalid or your loved ones having to pay a lot more to administer your estate retrospectively.

What are you worth?

In the first instance you need to understand how much you’re worth. Making a list of all your assets – any property, savings, shares, policies, insurances, pensions, jewelry, vehicles, gadgets, artwork, family heirlooms etc. – will help you determine the value of your estate. Don’t forget to include any online accounts as these are easy to miss if there’s no paper trail.

Do the same thing again, but this time, list all your debts. These will be any outstanding mortgages, credit card balances to pay, loans, finance arrangements – anything you owe money on.

Choosing an executor

When it comes to choosing an executor, you can appoint anyone you like as long as they’re over the age of 18. A word of caution though; being an executor is a responsible job that can involve a lot of work. They’re the person who’ll deal with distributing your estate, so you need to make sure that whoever you choose they’re both capable of doing it and want to.

Who’ll benefit?

Next, think about who you want to inherit your assets. Will it be all family or is there someone who isn’t a blood relative you’d like to leave something to? Also, think about family dynamics. More people are re-marrying, so if this applies to you, you’ll need to think about how this will pan out if you have children from your first marriage, for example.

You might also want to leave money to charity or an organisation. If this is the case, you’ll need to be careful to list the full name, address and registered charity number. Whoever and whatever you leave your estate to, it’s really important that you’re clear about what exactly you want to leave and to whom.

Make sure it’s valid

This can’t be stressed enough. If you don’t sign your will, it won’t be worth the paper it’s written on. This may be obvious, but it’s surprising how many people forget. As well as yourself, you’ll need two independent witnesses to sign in each other’s presence.

The witnesses, their spouses or civil partners can’t be a beneficiary of your will otherwise they’ll lose their right to their inheritance. In fact, they shouldn’t even be present when your will is being signed. It’s also wise not to ask an executor to be a witness.

If you’re unable to physically sign the will yourself, a clause needs to be added to the will stating that you understand the contents of it. It can then be signed on your behalf (as long as you’re present when it happens) with your consent. The consent basically states that you’re aware of the signing and that you’ve done it voluntarily and without pressure from anyone.

If you’ve been diagnosed with a degenerative mental illness, such as dementia you can still make your will as long as you have mental capacity and understand the effect it will have. Again, you’ll need to add a clause saying you understand the contents of your will before it’s signed, but in addition you may also need a medical practitioner’s statement at the time the will is signed, certifying that you understand what you’re signing.

Keep it up to date

Once you’ve drafted your will, it’s vital you keep it up to date. Events like divorce or marriage will invalidate your will. To avoid confusion, once you’ve updated your will, make sure you destroy any earlier versions.

Storing your will

Leave your will with your solicitor for safekeeping and advise your executor of its location. For reference, your solicitor can provide you with a copy. Never attach documents to your will with paperclips or staples because if they become separated and leave marks, it could raise questions about whether the will is missing any parts or amendments.

At Russell & Russell, we specialise in will writing. We’re accredited to the Law Society Wills and Inheritance Quality Scheme, which sets the benchmark for best practice and transparency in setting up wills and estate planning. All the solicitors in the wills and probate department are qualified members of Solicitors for the Elderly. The team is also part of the dementia friends initiative and we offer a free, no obligation consultation so that you can decide what you want to do and what’s best for you.