Money
Retirement
Your guide to making a will - part one
This article summarises UK law as at November 2006. It is for general illustration purposes and is not intended to constitute or replace professional legal advice. Written by Sue Davison, Will Aid, Peter Cooke, Stones solicitors, Taunton, Nick Barclay, Thorntons solicitors, Dundee. Edited by Paul Lewis
Everything in this guide to making a will which applies to a husband, a wife, a spouse, or a marriage also applies to a civil partner or a civil partnership.
Introduction
Writing a will and keeping it up-to-date is the only way to ensure that your assets are distributed as you wish when you die. So it is one of the best things you can do for your nearest and dearest. If you die without a will – what lawyers call ‘intestate’ – your worldly goods will be distributed in a manner laid down by the law, which may not reflect what you would have wanted. It may also leave loved ones with years of stress before it can be sorted out. If you have no next of kin your hard-earned assets will probably end up going to the state.
About two out of three people do die without a will. For the sake of your loved ones make sure you are not one of them.
Advantages of making a will
* to make gifts of sums of money or specific items to individuals or charities
* to appoint guardians or set up trusts for young children
* to prevent your loved ones falling out over who gets what
* to plan the distribution of your estate in order to minimise inheritance tax
* to set up trusts to make provision for a vulnerable person or after a second marriage
* to provide for pets
* to leave instructions about your funeral or cremation
* in Scotland, to save your loved ones the costs of a Bond of Caution (don’t worry we explain this later).
For richer, for poorer...
Many people don’t bother with a will because they believe that their partner will automatically inherit everything. Unfortunately, that does not always happen. Even if you are married or in a civil partnership, there are limits on what partners inherit from each other if there is no will depending on whether or not there are children and other surviving relatives. The surviving spouse can be forced to sell the home they live in to pay off other relatives. Last year in England and Wales, nearly 4,000 family homes had to be sold after someone died without making a will.
If you are living together without being married or in a civil partnership the situation is even worse. The survivor is not entitled to anything. All the assets of the deceased will pass to their children or their family. That can cause distress and arguments even in a close family.
The rules about what happens to your estate are different in different parts of the United Kingdom.
Broadly speaking, in England, Wales and Northern Ireland the people who can inherit are limited to your grandparents and their descendants in other words it stretches no further than your cousins or half-cousins and their children.
In Scotland they go back further generations to your great-grandparents or beyond and their descendants which can stretch out to your second, third or even fourth cousins and their children. That can make settling intestate estates in Scotland very difficult. If none of those people or their descendants is alive then the state inherits your property. The exact order in which people inherit and how much each gets is complex. Click here to see who would get what if you died without a valid will.
Tying – and untying – the knot...
A will is almost always automatically invalidated (lawyers call it ‘voided’) if you later get married or enter into a civil partnership. But that does not apply in Scotland where marriage or civil partnership does not invalidate a will made earlier.
It is possible to make a will as part of planning a marriage (lawyers call this ‘in contemplation of the marriage’) which then remains valid after that marriage. This process not only puts your affairs in good order, but can also ensure that the prospective husband and wife agree on which relatives or good causes should inherit when one or both die.
If you get divorced after you have written a will, any gifts to your ex-spouse will automatically be cancelled unless the will states otherwise nor will she or he act as executor. But if you made provision for your ex-spouse’s children or other family members, they would still inherit. Again, as with marriage, divorce in Scotland does not invalidate a will made earlier.
If you die while separated or in the process of divorcing and before the decree absolute, you are still married at death and your estate is treated accordingly.
...and tying it again!
There can be very painful consequences of dying without a will where there has been a remarriage and there are both children and stepchildren. This scenario can result in years of bitter family disputes. Unless specific provision is made in a will then assets could pass to the new spouse and, except in Scotland, your children may receive nothing. Stepchildren can also lose out if there is no Will and they have not been formally adopted.
Keep it up to date
You should review your will every few years and should certainly change it when your family circumstances alter as a result of birth, death, marriage or divorce. You should also review your will if your financial circumstances change significantly. For example, if you inherit or buy more property.
How do I make my will?
A will can be made with or without the help of a solicitor. But drawing up a homemade will can be risky and may turn out to be invalid in the eyes of the law. No matter how clear the contents seem to you, if a will is invalid then the estate will be divided up according to an earlier valid will or, if there is no will at all, the intestacy rules. There are several ways to make a will.
Will Pack
Cost: around £15
Picking up a will pack from a bookshop or stationery store is one of the cheapest options. But they are only suitable for very simple wills for people who do not own their home or other land, who have no beneficiaries under 18 and no concerns about trusts or inheritance tax. Even then the slightest misunderstanding as to the meaning of words or phrases such as ‘Assets’, ‘Sums of Money’, ‘Investments’, ‘Cash’, ‘All my Property’, could cause disputes and arguments. And of course you will not be there to explain what you meant! It is said that solicitors make more money from sorting out homemade wills than from drafting proper wills themselves.
Online
Cost: around £10 to £40
If you have access to the internet you can make your will online. That is usually a very convenient option since you don’t even have to leave home and with some services a solicitor or professional will writer will scrutinise your draft will before it is finalised. But it is surprising how much information is lost by not having a face-to-face discussion. Details such as a handicapped child, the existence of a family trust or the admission of a child by a previous relationship could materially affect the contents of a will. Nothing beats sitting down and discussing your situation with a professional.
Will Writer
Cost: about £30 - £75
Anyone, whether a solicitor or not, can now write a will and charge you for it. So professional ‘will writers’ have sprung up everywhere. Many belong to self-regulatory bodies such as the Institute of Professional Willwriters or The Society of Will Writers.
Many people are attracted to using a will writer because it costs less than a solicitor. Will writers are often perceived as less formal and stuffy than a solicitor and they are more likely to make home visits.
However, there may be disadvantages that could prove costly later. Some will writers may be poorly trained and have little experience. So always check that they belong to one of the self-regulatory bodies and that you are satisfied with their training and insurance. In August this year, the Law Society of England and Wales published what it called “Dossier of despair: Case studies involving problems with unregulated will writers” which contained some examples of what can go wrong when you use an incompetent will writer .
Will writers may also be in the business of trying to sell you other financial products, which you may not want or need. There is a danger that if there are any problems, you may not be able to trace your will writer since there is a high turnover of companies starting up and closing.
Solicitor
Cost: probably about £100 to £200
One way to get a will written is to go to a solicitor. Costs vary widely depending on the location and the complexity of the work involved. Typically, in England the charges for a single will are between £125 and £175 (expect to pay more in major cities) unless specific tax or trust advice is required. In Scotland, it ought to cost no more than £100 for a couple to make simple wills leaving most things to each other – what are called ‘mirror wills’.
Although the cost of writing a will with a solicitor tends to be higher than other ways there are advantages. A solicitor brings a wide range of legal skills and experience, for example in property law and business which may be relevant. All solicitors have professional qualifications and are supervised by the Law Society. They all have insurance and an established complaints procedure if things go wrong. In addition most solicitors will store your will and other legal documents, in many cases free of charge. And of course they can provide other legal services as and when you need them.
* This article summarises UK law as at November 2006. It is for general illustration purposes and is not intended to constitute or replace professional legal advice. Written by Sue Davison, Will Aid, Peter Cooke, Stones solicitors, Taunton, Nick Barclay, Thorntons Solicitors, Dundee.
* The opinions expressed are those of the author and are not held by Saga unless specifically stated. The material is for general information only and does not constitute investment, tax, legal, medical or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.
Edited by Paul Lewis
