Ready for all the information you need to know about writing your Will? This article has been written by the Society of Will Writers (SWW). The Society of Will Writers is a non-profit making self-regulatory organisation which seeks to protect the public and serve the interests of those men and women who are active professionals in our field.
The Society has set itself two main tasks:
To promote to the public at large the real need and sense in having a valid Will; and to act as a self-regulatory body by vetting practitioners through stringent membership requirements, proficiency standards and on-going training.
Why do you need a Will?
There are multiple reasons why you might want to write a Will.
- Avoid intestacy
If you die without making a Will, known as dying intestate, then your assets will be distributed according to the rules of intestacy. This will mean that the people you would like to receive your estate may not necessarily inherit it.
- Appoint executors
Executors are the people you choose to carry out your wishes and manage your estate once you have passed away. They are responsible for collecting in your assets, paying any debts and funeral expenses and transferring any gifts to your beneficiaries. If you write a Will you can appoint people who you know and trust to act as your executors.
- Appoint testamentary guardians
If you have minor children, you may wish to make provision in your Will for who would care for them if you were to pass away. A Will allows you to appoint guardians you trust and who your children are familiar with, offering you peace of mind. How you would like your children to be brought up can be explained in a letter of wishes accompanying the Will.
- Provide for the people you care about
A Will allows you to make gifts to individuals who you care about and want to provide for, even those individuals who would not inherit under the rules of intestacy. If you and your partner are unmarried or not in a civil partnership they will only inherit property that you own jointly if you die without a Will. Making a Will allows you to provide for them.
- Make funeral arrangements
Within your Will you can make your desired funeral arrangements known. This can include whether you want to be buried or cremated, where you want the funeral to take place and even whether you want flowers at your funeral or donations to a charity you’re passionate about in their place.
- Manage inheritance tax
A carefully drafted Will can help mitigate the amount of inheritance tax you pay on your estate.
- Gifts to charity
In your Will you can leave a legacy to any charities that you have supported or feel passionately about their cause. Any charitable gifts you make in your Will are also free from inheritance tax.
- Trusts
Using trusts in your Will you can protect your assets such as your family home for your children while still providing for your partner during their lifetime. You can also use trusts to hold assets on behalf of a child until they reach a certain age, or to protect a beneficiary from their own improvidence.
Decisions you need to make?
Aside from the aspects covered under the ‘why do you need a Will?’ you should consider the following:
Are you excluding anyone?
If there is someone specific that you do not what to inherit from your estate, then you should give careful consideration to the effects of excluding them from your Will. Consider whether they could be able to successfully challenge your Will. If they believe reasonable provision should be made then they will be likely to challenge under the Inheritance (Provision for Family and Dependants) Act 1975. Your Will writer should tell you who is likely to be able to make a claim and some chose to make provision for these parties.
If you are choosing to exclude someone from your Will then you might want to write a letter of wishes to support the Will. Whilst a letter of wishes is not legally binding, it will give your executors and trustees information about why you are choosing to exclude them. In addition, should the case go to court for deliberation then the court may take this into account.
Appointing Trustees
By definition a trustee is an individual person or member of a board given control or powers of administration of property in trust with a legal obligation to administer it solely for the purposes specified.
When you write your Will you have the freedom to choose who you would like to administer the estate and for who you would like to manage assets.
There are many reasons that you would appoint someone to manage assets in your Will. If for example you wanted someone to benefit from a monetary sum from your estate but were worried that they wouldn’t manage if the sum was given to them then you could appoint someone to manage the money and ‘drip feed’ it.
When you appoint a trustee, it should be someone that you trust. If they were to mismanage the assets then this could be a criminal offence. If there is no one that you would trust to handle the assets you would ultimately like to pass on to a beneficiary then you could appoint a professional trustee. Organisations that work in private client will have divisions that can help. The SWW Trust Corporation do exactly this. They act as both professional trustees and attorneys and can make decisions in accordance with the wish of the donor or testator.
For more information on the responsibilities of Trustees then read this article: https://www.willwriters.com/blog/trustees/
Planning your funeral
The British, known for their stiff upper lip rarely like to talk about death. It’s the same in some Asian communities. As a result it can sometimes be difficult for the family of the deceased to know how to arrange the funeral. Poor communication has also lead to funerals being paid for twice. We’ve heard stories where a testator has taken out a pre-paid funeral plan but the family were not aware. As a result, when the time came, they arranged the funeral and the estate has essentially paid twice for a funeral.
It would be our advice that if you have taken out a pre-paid plan that this information be included within the Will (with the pre-paid plan number). You can also include additional information in your letter of wishes as to how you would like your funeral to be arranged, what music you would like, who you would like to be invited etc.
Do you need a Lasting Power of Attorney (LPA)?
A Lasting Power of Attorney is a document that after being successfully registered with the Office of the Public Guardian, allows you to appoint people to make decisions for you in the event that you can no longer make decisions for yourself.
There are two different types of LPA’s. These are one governing health and welfare and the other dealing with property and financial affairs.
It is possible to complete the paperwork for a Lasting Power of Attorney and not register it straight away. The paperwork needs to be signed by the donor (the person who the LPA is for) whilst they still have the capacity. It can then be registered when it is needed.
If you have a history of dementia in your family, then it is sensible to have these documents in place. If you cannot think of anyone you would trust or would like to be your attorney(s) then you have the same option as you do with trustees – you can appoint a professional. They are likely to charge for their time so investigate the costs before deciding.
What happens if you die without a Will?
Dying without a Will is also known as dying intestate. If this were to happen then your estate would be distributed in accordance with a pre-defined set of rules. For more information on what would happen if you died without a Will then this article written by College of Will Writing tutor and technical advisor for the SWW, Siobhan Rattigan, explains all you need to know: https://www.willwriters.com/blog/dying-without-will/
What can you put in your Will?
There is a principle under English and Welsh law that you have testamentary freedom. The freedom of individuals to dispose of their property upon death as they see fit. This principle has been tested in the courts where people have excluded ‘close’ family members or people who may have a reason to make a claim on the grounds of reasonable provision.
Aside from this you can gift anything you own in your Will.
Is your Will valid?
A Will is made valid by the signing and witnessing process known as the attestation. These formalities are governed under the Wills Act 1837 and specifically under S.9 – http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9
This provides that the Will needs to be signed by the testator in the presence of two witnesses. The witnesses must not benefit from the Will or would forfeit their gifts. The Witnesses must then sign the Will themselves to acknowledge that they’ve witnessed the testator sign.
What happens to the ‘stuff’ that you own that aren’t specifically mentioned in your Will?
You don’t have to list every single item that you own in your Will. Property that belongs to you that you don’t make specific reference to can gifted as part of your residuary estate. Your residue is the part of an estate that is left after the payment of charges, debts, and bequests have been made.
For lower value gifts you can refer to this in your letter of wishes but bear in mind that this is not legally binding.
Binding a Will
There are no formal rules governing how a Will should be bound however a Will writer will let you know what their guidance is. When it’s being signed it ought to be held together but this can be done by your finger and thumb.
When the Will goes to probate the probate registrar will look over the document for signs of it being tampered with. If the document has been stapled and there are additional staple marks then questions are likely to be asked as to where the Will has been dismantled.
The traditional/common ways to bind a Will include heat sealing or the use of legal corners. Your Will writer will bind everything for you.
Digital Assets
When you’re doing your estate planning you should consider all the things and platforms that your family or beneficiaries will need to cancel, access or may want to see when you’re not here. Some providers will require a death certificate to close a profile and other platforms like Facebook can create a memorial page once you’re no longer around so that your photos and memories aren’t forgotten or lost.
Your executors will need access to things like your PayPal account, lottery account or any betting accounts in order to draw in assets and to close them. You can store your passwords for platforms like this in digital vaults where access can be granted after your passing.
‘Stuff’ you can’t put in your Wills
There have been legal disputes about things that beneficiaries have wanted to make use of after death, but the providers have put a stop to. A prime example of this would be iTunes accounts. The terms and conditions within iTunes essentially grant you a license to play music after it has been purchased. This terminates on death and despite having spent considerable sums of money on music this cannot be gifted in your Will according to the terms of use set out by Apple.
Think about what you would like to see happen. Explain it to your Will Writer. They’ll give you advice.
Writing your Will can seem like a daunting process and has the potential to be complicated. Before you see your Will writer, list your assets, liabilities, and who you would like your ‘stuff’ to go to. They’ll help you to put an estate plan in place.
The Will Writers advice
The price of the documents the Will writer is going to produce for you and the information they provide is down to advice. You may think that what they propose to charge seems expensive but bear in mind that they incur the costs of travel, document production, insurance etc. They also charge you for their time and advice it may seem more reasonable. You are under no obligation to proceed after hearing the pricing if you don’t wish to and don’t have to proceed with the plans they propose but understand that this is what they do for a living and as such they should be giving you best advice.
If you choose not to accept their advice in favour of another decision they may request that you sign a document to this effect. This may limit their liability further down the line. Also note that they can only provide advice based on the information you provide so you should be as up front and honest as possible with your estate planner.
Should I get a free Will?
A Will is very rarely ever likely to be free. There are schemes that offer ‘free Wills’ but they be insist or ask for charitable donations instead. Ensure you read the terms and conditions for any campaign before signing up.
For more information on ‘free Wills’ refer to our article, ‘Is there such a thing as a free breakfast?’: https://www.willwriters.com/blog/thing-free-breakfast/
Contesting a Will
To contest a Will, you are likely to need legal advice. If you feel like you’ve been disinherited or haven’t inherited as much as you should have then speak with a solicitor who will provide you with advice.
They’re likely to start by looking into the case files held by the Will writer who produced the documents. They will be looking to identify what advice was given and what the intentions of the testator were. This letter is known as a Larke v Nugus letter.
For more information on a Larke v Nugus letter then refer to this article written by the SWW: https://www.willwriters.com/blog/larke-v-nugus-2/
Meeting your Will Writer
One of the key differences between a Will Writer and a Solicitor is that the Will Writer is more likely to meet with you in your home or place of work to take your Will instructions. As a result, any engagement you have with them will be governed by the Consumer Contract Regulations.
Having the appointment in your home should put you a little more at ease and having your address before the meeting, the Will writer will be able to make checks with the land registry as to how the property is held.
Before the meeting you may also want to compile a list of how you would like your estate to be distributed and also what assets are comprised in your estate.
You might want to list what life insurance policies you have, what pensions you pay into and what online accounts you have that might be valuable.
Who to choose?
This is probably one of the most difficult things to decide and careful thought should be given to this. Don’t be frightened to ask questions to Will writers you propose to use.
Ask them if they subscribe to a Code of Practice and if they are a member of a self-regulatory body like the Society of Will Writers. Even if they say yes, don’t take this for granted. Feel free to ring our team and check. Check our website to see if they’re listed on there (not all members choose to have a web listing).
We would advise doing a web search for the company in question to identify what other people’s experiences are.
If you choose to use an SWW member, you should understand that we regulate individuals and not the company. As such the company is not a member. If you have a specific individual coming to see you check that the person is a member. They should be able to provide you with an up to date certificate of compliance and a membership ID card.
Don’t allow yourself to feel pressured by your Will Writer. Take time to think about the advice, remember you have a 14 day cooling off period if you’ve met the Will writer in your home. We would also encourage you to read all documentation through carefully before signing. Anything you don’t understand, you should ask about.
If you would like us to put you in touch with a member of the SWW then give us a call on 01522 68 78 88.
Can I write a Will myself?
The short answer is yes. Anyone can write their own Will in the same way that anyone can hold themselves out as a Will Writer. There are no formal qualifications needed but the subject of succession is an incredibly complex one and you should acknowledge the risks of writing your own Will. For more information on the dangers of ‘DIY’ Wills take a look at our article: https://www.willwriters.com/blog/danger-diy-wills/
Members of the SWW undertake regular training to ensure their knowledge is up to date. The legislation governing our profession is complex and has wide reaching effects. Before you decide that you have a simple estate and therefore only need a simple Will speak to a legal professional for free and independent advice. Remember that you don’t need to proceed straight away.
How much is a Will or estate plan?
People often think that they only need a basic Will and this is rarely the case. A Will Writer will be able to give you in depth advice as to how they access your needs.
Where the inclusion of trusts takes place the cost of a Will is likely to increase. Consider also that your Will writer can help you with LPA’s, severing the tenancy on your property, as well as Will storage. These will all have a cost attached to them.
Remember that you’re not only paying for the Will but for the advice being provided. Consider the tax savings on the estate as well before coming to the conclusion that it’s all too expensive.
In summary, there are no fixed costs for a Will. It depends on your needs, the advice provided, and there are countless variables like location etc. Speak with a Will Writer to get an idea and remember not to feel pressured.
Will storage – practical considerations
The key considerations when it comes to Will storage are that when the time comes, your executors need to know where your Will is so they can act upon your wishes. We’ve heard countless stories of Will Writers going out of business and clients not being able to find their Will, people storing at home and the Wills going missing or being destroyed by accident. Remember that if you store your Will in a bank deposit vault then your executors won’t be able to access it.
If you chose something like The National Will Archive through the SWW then your executors can be provided with ‘credit card’ style records of where the documents are held. You as the testator will be provided with a certificate of safe storage. We store in excess of 100,000 documents.
https://www.thenationalwillarchive.co.uk/
The difference between storage and registration
It is important to note that there is a difference between Will storage and Will registration. There is no national register for Wills but Certainty – The National Will Register hold probably the largest record of where Wills are stored. They know the location of over 7.5 million Wills. They don’t store Wills.
Will storage is just that; the physical storage of the Wills. If your Wills are stored with The National Will Archive then it is likely that they are registered with Certainty. This will increase the chances of a Will being found should the location not be known by the executors in a Will.
What does storage cost?
Typically, Will storage is charged annually. This ranges from £30 to £50 but can cost more depending on the other services being offered and what is stored. If updates are included, then it is likely to increase.
The Society of Will Writers do not believe in lifetime storage with free updates. There are no guarantees that the Will writing company will be able to guarantee this service or be there to offer the service in years to come.
Nervous about writing your Will..
Don’t be. Remember, you’re in control and you can ask as many questions as you like. You wouldn’t buy a car if you weren’t happy, so apply the same logic. If you have any questions then speak to the Society of Will Writers by calling 01522 68 78 88.
Alternatively visit www.willwriters.com.
