Benjamin Franklin said “Nothing in life is certain except death and taxes”. Unfortunately, in death the way your estate is distributed won’t be certain if you haven’t made a Will.
In the Private Wealth team, we understand that the thought of making a Will and discussing estate planning may be off-putting – but it needn’t be.
Whether you’re coming to discuss your Will for the first or the fifth time, we won’t expect you to have decided exactly what you want it to say. We’ll listen, ask questions and suggest solutions we think are right for your personal circumstances.
Why make a Will?
Research tells us up to 60% of individuals in the UK do not have a Will. If you die without making a valid Will, you are said to be intestate. If you die intestate, the law determines what happens to the assets in your estate after your death. Your loved ones will have say in who deals with administering your estate or who benefits and by how much.
When someone dies intestate, it can be necessary to involve a genealogist to find lost or unknown relatives. This will inevitably involve extra time and cost.
Dying without leaving a Will can also cause disputes between relatives, as the person who you wanted to leave your estate to, or who really needs the assets of your estate, may not be the one who actually inherits under the rules of intestacy.
It’s generally quicker and more cost-effective to administer the estate of someone who made a Will, so it’s kinder to your loved ones if you can set aside the time to do it now.
Ensuring your assets are protected
When you have spent your life building up and protecting your assets, why risk them falling into the wrong hands on your death by not taking proper advice?
A Will can be used to preserve assets for different beneficiaries. For example, if you have specific assets (such as property, certain investments or business interests) that you want to pass to particular beneficiaries and not others, you can specify this in your Will.
In contrast, if you die intestate and more than one person is entitled to a share in your estate, it may be that the only way to ensure they each receive their share is to sell the assets and divide the proceeds. This may not be what you wanted – particularly as the sale of certain assets, such as the family home, could be particularly distressing for some of the relatives you leave behind.
As well as deciding which beneficiaries will inherit under your Will, you can also decide how they benefit. Flexibility can be built into your Will to ensure that, whatever your circumstances, your chosen beneficiaries benefit as much as possible. This might include protection against your spouse remarrying after your death, including an age contingency for your children or other young beneficiaries to benefit or protecting against the possibility of your beneficiaries taking a potential inheritance for granted.
The process of making a Will gives you the opportunity to properly consider those people who might reasonably expect to be included in it. Just because a person may expect to be included in your Will does not mean you have to oblige, and making a Will is particularly important if you want to specifically exclude someone from it. However, before deciding to exclude someone from your Will, it’s important to properly assess the decision and take advice about the potential consequences. This will give you the best opportunity of avoiding a dispute over your Will after you have died.
Why should I use a solicitor to make my Will? I could draft one myself or use a DIY Will writing kit
It’s true, anyone can write their own Will. There are hundreds of DIY Will kits available online and a ‘homemade’ Will can be valid. However, there are lots of pitfalls that can make a homemade Will have unintended consequences, be open to challenge or even be completely invalid. Some issues created by a homemade Will can be unravelled after death but the process is lengthy, time consuming and can cause great uncertainty for those who stand to benefit from your estate.
It’s important to note that homemade Wills are easier to challenge. Generally speaking, a Will can be challenged on one of the following grounds:
- the person who made the Will did not have capacity to do so
- the Will is invalid on technical grounds
- a relative or dependant of the person who has died has not been sufficiently provided for in the Will.
A Will drafted by a solicitor will be supported by detailed notes of any meetings and calls to discuss the Will and its contents. As well as the actual content of your Will, the solicitor’s file notes will help confirm there was no doubt about your mental capacity when the Will was signed. These notes will be crucial in helping your executors defend any challenges to your Will after your death.
With a homemade Will, there is often no such supporting documentation. Such challenges to an estate after death are distressing, drawn out and expensive. By properly considering these issues before death and having a suite of properly drafted supporting documents in place, you can successfully mitigate the risk of such challenges.
There are several long and short term benefits of using a solicitor:
- as well accurately drafting your Will, a solicitor will take into account other important estate planning issues such as inheritance tax and whether any trust structures might be suitable in your circumstances
- any of the mistakes that frequently occur when making homemade wills can be avoided
- the original Will will be stored safely and securely, free of charge.
In the event that anything goes wrong with your Will, you are protected if it has been prepared by a solicitor. Although anyone can start a business writing wills, only solicitors are regulated.