A guide to making 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 and, in worst cases, a contentious probate claim.

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. A well drafted Will can properly protect beneficiaries whose circumstances make them vulnerable. ‘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 affect the amount of inheritance tax payable.

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 conversation with you so you can explain your wishes and we can provide 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 should be attached 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 flexible arrangements, which 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 how you can minimise the risk.

We make careful notes in 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 is enough for us to provide the reassurance they need.

After our initial discussion, we will usually send you a draft of your Will, along with a commentary letter and further advice. Once you have considered 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.

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 considering appointing a professional executor, we will ensure you understand your options and the likely basis for 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/= and key dates, or 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 has 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 managing your estate after you die, ensuring 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 draft your Will, you will sign it at our office, and we will witness your signature and ensure that everything is completed correctly. Occasionally, circumstances may require you to sign your Will outside our office, and we will provide clear instructions on 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 we can check that 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.

How much does it cost to make a Will?

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 straightforward, and sometimes we also charge for additional time that may be required to provide specific advice and help 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 that we think are clear in everyday conversation can be subject to different legal interpretations when written down. A home-made will often result 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 put them right easily.

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.

Conclusion

Hopefully, this will give you a flavour of the process of making a Will with us and some common pitfalls to avoid.