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What is a Will?
Your Will is a very important legal document where you record your wishes about who will inherit your money and property after your death. A well written Will can protect your beneficiaries, help avoid arguments after your death, and sometimes save tax. On the other hand, an inadequate Will can easily lead to expensive and long running disagreements.
Why do you need a Will?
There are many reasons why it is very important to make a Will, but first and foremost it is how you legally set out your wishes in relation to everything you have worked hard to accumulate or save in your lifetime. Your Will should clearly record how everything will be distributed between the people or causes that matter most to you. Without a Will all your money and assets will be distributed according to the laws of intestacy, which very often, will not reflect your wishes.
Family and financial circumstances are often more complicated these days, and this makes it increasingly important to take good legal advice about your Will. Beneficiaries whose circumstances make them vulnerable can be properly protected by a well drafted Will. ‘Patchwork families’ where there have been multiple marriages and children from different relationships can all be appropriately provided for in a Will drafted by someone with suitable expertise and experience. Often the structure of a Will can impact the amount of inheritance tax that will be paid.
How to make a Will
When you consult us about making your Will, we will need to understand your family and financial circumstances so that we can give you the best advice. We usually ask you to provide this information by completing our questionnaire so that nothing is overlooked. The advice we give you is an important part of our service. A good Will isn’t just a ‘standard document’ that anyone can easily produce without understanding your situation and your objectives.
We will have an initial meeting with you so that you can explain your wishes and we can give you some preliminary advice. We will discuss who you want to appoint as your executors, and if your Will also creates trusts, these people will often also act as trustees. We will ask you who you want to leave your money and property to, and whether any conditions need to attach to the gifts. We will often suggest better and more straightforward ways of achieving the outcomes you have in mind, so that your legal arrangements are more secure.
Often, we can propose arrangements which are flexible, and this may be more advantageous for your family or beneficiaries in the future as life evolves.
If we think your wishes might lead to someone potentially challenging your Will after your death, for example if you wish to exclude a child or someone who may be expecting an inheritance, we will give you advice about the ways in which you can minimise the risk.
We make careful notes on our file and our insurers require us to keep records of your instructions until several years after your death. This provides you with valuable protection and means that in the hopefully unlikely event of a challenge to your Will, we will have evidence in support of your wishes.
Members of our team also have specialist training to help them support anyone whose circumstances make them vulnerable. It may seem daunting or difficult to consult a solicitor. We have helped many people in a variety of challenging circumstances, and usually just one meeting will be enough for us to give the reassurance that is needed. Although generally we have meetings in our office to discuss Wills, sometimes we will have meetings online using Microsoft Teams or Zoom, and we can also make home visits when this is most appropriate.
After we have had this initial discussion, we will usually send you a draft version of your Will with a commentary letter and further advice. Once you have been able to consider this you may want to make a few small changes, otherwise once you are happy with everything, we will meet with you again to sign your documents. Usually we store your original completed Will and send you a copy. We also register the Wills we make with Certainty, the National Will Register so that your Will is always easily traceable in the future.
You may also want to make Lasting Powers of Attorney when you make your Will, or consider making an Advance Medical Decision, often referred to as a ‘Living Will’. Sometimes you may also think it’s beneficial to create a lifetime trust or consider other measures to potentially minimise the inheritance tax that may otherwise be paid on your death.
Choosing the right executor
Choosing an executor is an important part of making a Will. Usually you will nominate between one and four individuals (depending on your circumstances) to be your executors. Sometimes a professional executor may be the better option. If you are thinking of appointing a professional executor, we will ensure that you understand your options and the likely basis of future charges for this service to help you make the right choice. You should never be pressurised to appoint professional or commercial executors and it should not be put forward as the default option. In some circumstances it is advisable to appoint a professional executor but more usually it will be unnecessary, and a solicitor can simply be consulted to help the executors at the relevant time.
Your executors are responsible for carrying out your wishes in accordance with the terms of your Will so they must be responsible and capable of dealing with the tasks required. An executor’s responsibilities and obligations are set out in law, and they will be personally liable for many of their actions. This can be a big burden if they aren’t also the main beneficiaries of your Will. If you feel you need to make it ‘worth their while’ by paying or compensating them – for example by leaving them a cash gift or legacy in your Will, then arguably the wider beneficiaries of your Will may be better served by you appointing a professional executor, but of course, as ever, this depends on all the circumstances.
Executors are responsible for calculating and paying any inheritance tax due on your estate and they must meet various important, prescribed legal timescales/ key dates, otherwise there will be financial consequences.
Acting as an executor and administering someone’s estate is not a task to be undertaken lightly, it is a responsible and risky job. Don’t appoint an executor who will have an obvious conflict-of-interest, and don’t appoint a combination of people who are likely to disagree with one another as this will be a recipe for disaster.
What does an executor do?
Executors
An executor is responsible for dealing with and managing your estate after you die, making sure that your wishes are carried out. Some of the key tasks that an executor may need to undertake include:
– Making funeral arrangements
– Communicating clearly with the beneficiaries
– Insuring your assets
– Obtaining valuations of the assets in your estate
– Calculating and paying any necessary inheritance tax
– Applying for probate
– Paying any debts
– Completing any required income tax returns and paying all taxes due
– Distributing your possessions, selling your property, and cashing in or transferring your assets at the appropriate time (doing things in the wrong order can sometimes result in additional or unnecessary tax being paid)
– Dealing with all the necessary legal paperwork
– Accounting in detail to the beneficiaries
– Transferring assets to trustees (if the Will creates ongoing trusts)
Witnesses
To be legally valid your Will must be signed in the presence of two independent witnesses. Usually, when we make your Will, you will sign it at our office, and we will witness your signature and ensure that everything is correctly completed. Occasionally the circumstances will mean that you need to sign your Will away from our office and then we will give you clear instructions about the procedure to follow. After you have signed, in front of your witnesses, we will ask you to return the original document to us so that we can check everything is in order.
The people who witness your Will must be over 18 and mentally competent, they must be able to see, and they must not be a beneficiary of your Will or married to a beneficiary of your Will. If your Will is challenged in the future the witnesses may be required to give evidence about the circumstances surrounding the signature of your Will, so all of their details (their full name, address and occupation) should be clearly recorded beneath their signature.
Beneficiaries of your Will may also be the executors of your Will if appropriate, but they must never witness your Will.
What does it cost to make a Will?
When you make your Will with us you are paying for our advice and time, and then the preparation, completion, and future storage of your document. Once we have a brief understanding of your circumstances, we will usually estimate our fees. Generally we charge fixed fees for the preparation of your documents if the documents themselves are going to be straightforward, and sometimes we also charge for additional time that may be required to give you specific advice, to help you ensure that you achieve the best outcome.
You may be tempted to write your own Will if you think that your circumstances are straightforward. Our clear advice is “don’t do this”. Sometimes words which we think are clear in everyday conversation can be subject to different legal interpretation when they are written down. A home-made will often results in unforeseen problems and expense. These problems will only come to light after you have died by which time it is generally too late to easily put them right. A home-made will is an entirely false economy – we are happy to tell you this for free!
Charities regularly advertise “free Wills”. Usually this is because they hope and expect that you will then leave them a legacy or gift in your Will. This motivation to provide you with a “free” Will has clear limitations. It is much better to get considered professional advice from an independent solicitor. The cost of your Will is negligible when set against the value of your assets to leave, and certainly as compared to the cost of one week in a nursing home or your funeral expenses. We will always help you consider the best way to leave money to the charities that you support when you make your Will.
Some financial companies are good at promoting and aggressively marketing “Will and Trust Solutions”. Usually they will also sell you financial products in tandem with their “solutions”. There is often some smoke and mirrors surrounding the fees. They may tell you that their solutions will save future administration costs, avoid probate costs, and mean you won’t have to deal with an “expensive solicitor”. They may say they will save your estate inheritance tax and protect your money and property from care home fees. Often the solutions are fundamentally flawed, and when this eventually comes to light – when someone needs care or after a person has died, the adviser has long since sold out, or sailed off (uninsured) into the sunset. Put bluntly, if something seems too good to be true, it usually is. If a company is asking you to pay fees more than £5,000 for their “Will and Trust solutions” (providing notional solutions to problems that you may not ever have) always seek a second opinion from a suitably qualified and experienced solicitor. The internet alone is not the way to get sound and specific legal advice.
Conclusion – How McKenzie Law Solicitors can help you
Hopefully this will give you a flavour of the process of making a Will with us and some of the common pitfalls you should avoid. We are an established and independent Solicitors practice, authorised and regulated by The Solicitors Regulation Authority. We have a small and highly experienced team of legal advisers who will take time to understand your circumstances and your wishes, and then give you good advice so that you can achieve the best outcome for you when you write your Will.
