Why should I use a Solicitor to make my Will?09 Sep 2020 // Insights
Private Client Solicitor Zoe Pearse TEP looks at the importance of using a qualified lawyer to draft a Will, and some of the pitfalls of not using one...
As restrictions continue to be eased following COVID-19, there is still uncertainty about the UK’s economy, with many experts warning that a prolonged recession may be inevitable.
Unsurprisingly, under these circumstances people are concerned about their finances and want to ensure that their affairs are fully in order, including their Wills.
Some individuals may be enticed by the low-cost Wills advertised online by the likes of the Co-Op or DIY Will kits sold by WHSmith and even on Groupon. Whilst such options seem to offer an immediate solution and appear to save money, these types of Wills can present many problems and difficulties. In the long term, these can have significant and damaging implications from a financial point of view. In addition, they may potentially lead to disputes among the family.
With this in mind, it is always advisable to have your Will professionally prepared by a fully qualified solicitor who is able to give you the best possible advice, ensuring that your Will is prepared in a way which both achieves your wishes and ensures that your estate passes in the most tax-efficient way.
Why make a Will at all?
We should start by considering some of the crucial reasons why it is so important to make a Will, whether you have a valuable estate or not.
- If you die without making a Will then you die ‘intestate’ and the rules of intestacy will apply to your estate. This means that your assets are divided out among a specific statutory order of persons entitled. Ultimately, these may be people who you do not wish to benefit from your estate.
- Longterm unmarried partners and cohabitants are not automatically entitled to inherit property or assets without a Will made in their favour. Clearly, this can create a stressful situation for those left behind and may lead to serious financial difficulties in the future.
- If you have children under the age of 18, a Will enables you to choose their guardians should both parents die before the children reach the age of 18. The absence of a guardianship clause in a Will can lead to friction with remaining family members over who should look after orphaned children at an extremely difficult and sad time.
- By making a Will, you are able to choose your executors and/or trustees. This is crucial as they are the people who will carry out your wishes and ensure that your estate is administered properly and in a timely manner.
- Your Will can provide the opportunity for Inheritance Tax planning and asset protection for future generations.
There should, therefore, be no doubt about whether you should make a Will. Of course, there are many different types of Wills and it is always best to seek specialist advice from a fully qualified solicitor. This will ensure that you understand the different options and can make an informed choice about the most appropriate type of Will in your circumstances.
But do I really need to use a solicitor?
First, a solicitor will ensure that your Will has been executed correctly and meet the formal requirements of the Wills Act 1837 to ensure it is valid. We often see mistakes with Will signing and witnessing which, if left undetected until death, could mean your Will is found to be invalid, This could, in turn, mean that you are treated as having died intestate.
Similarly, if you wish to make amendments or changes to the Will after it has been made during your lifetime (due to a change in circumstances, for instance), a solicitor can advise on the correct way of ensuring that the changes are valid. There is common misconception that you can simply handwrite over your original Will and initial the changes - this is completely incorrect!
Often individuals will have more complex family circumstances (e.g. second marriages or children from a previous relationship) and, in such cases, it is clear that asset protection is a key requirement. A more comprehensive Will is therefore usually essential, potentially involving a range of different trust structures. Solicitors can advise on a trust structure which caters for all family members who need to be provided for. This can help to avoid or mitigate claims in the future from disappointed beneficiaries who may allege under The Inheritance (Provision for Family & Dependants) Act 1975 that reasonable financial provision has not been made for them.
Similarly, basic Wills not prepared by a solicitor usually have no consideration for Inheritance Tax planning or mitigation. However, this is often needed when assets are left to non-exempt beneficiaries which can trigger a significant Inheritance Tax liability. Solicitors are qualified to spot this pitfall and advise on the most practical way to pass assets on, either without incurring or at least minimising an Inheritance Tax liability.
One of the important decisions you will need to take when making a Will is choosing the right people to administer your estate as well as looking after assets if a trust is involved. These people are known as executors and trustees. Some Will-writers or banks may often pressure individuals into choosing them to act in this role. This is not always appropriate or sensible and may even serve as a way to charge more substantial fees in the future to counter the low or fixed fees they may initially charge for the Will in this first place. A solicitor can advise you on the right people to fulfil this role not only when you make a new Will but during the course of your lifetime as your personal circumstances and requirements may change.
From a practical point of view, solicitors can also assist with lifetime storage of Wills. If a Will is left in the personal possession of the testator, it can be at a real risk of being lost or damaged. If this does occur then, unfortunately, your estate may be treated as if no Will had been made at all. This would mean that the rules of intestacy would apply. It is much easier and safer for your solicitor to store your Will on your behalf for safekeeping, usually for no fee.
Whilst it is true that anyone can write a Will, Private Client solicitors have specialist legal training on the subject. Many will also have taken the STEP Diploma which is a professional qualification specifically centred around Wills and estate planning. You should seek to find a solicitor who has achieved their STEP qualification. This is denoted by the letters TEP after their surname and really is a benchmark within the industry. It demonstrates that your chosen solicitor has expertise and exceptional knowledge in this area ready to pass onto you, the client.
How can Seddons help?
All the members of the Private Client team at Seddons are highly approachable and will do their very best to help, whatever your circumstances. The team prides itself on providing a bespoke personal service, complemented with technical expertise.
If you have any questions regarding this article or Wills in general, please do get in touch with your existing Seddons’ Private Client contact or the Head of the Private Client team, Stuart Crippin TEP, at firstname.lastname@example.org, or on 0207 725 8056.
The information provided in this article is for general guidance purposes only and individuals should take professional legal advice in relations to their Wills.
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