Thinking you don’t need a Will

How many times have we heard people say things like ‘I don’t need a Will, my wife will just get everything’ or ‘I don’t need a Will, I don’t have any money’?  Every person over the age of 18 should have a Will, no matter what the value of their estate is.  Failing to make plans for your estate can cause a number of issues for your loved ones when you die.

Yes, it is true that your spouse or civil partner is first in line in the laws of intestacy to inherit your assets, however, it is not always as simple as that.  If you have no children together, your spouse or civil partner would inherit your estate.  However, if you have children, this is where it gets a little bit more complicated.  Your spouse or civil partner would receive the first £322,000, all personal possessions and half of the remainder of your estate and your children would share the other half.  This could cause a number of issues, one of them being you may not wish for your children to receive their inheritance at age 18 (which they would under intestacy rules) as it might not be in their best interests to do so.

Drafting your own Will

Having a DIY Will sounds like a good option in theory, however there are certain formalities that must be adhered to for a Will to be valid.

One of the main risks of doing a Will yourself is that any mistakes you make could potentially make your Will invalid, and your wishes may not be fulfilled.  This could mean that your family is left with legal and financial issues on your death that could have been easily avoided.  Most DIY Wills do not consider what should happen if any beneficiaries predecease the testator which can lead to a partial or full intestacy of the estate.  If someone inherits through intestacy that is a minor, they will automatically be entitled to their inheritance at age 18, whereas if the testator had sought out advice from a will writer, the Will could have contained a trust that held the inheritance until they were older and could use the money more wisely.

One of the biggest issues with DIY wills, however, is in relation to the execution of the Will.  In order for a will to be valid it must have been signed or acknowledged in the presence of two witnesses.  A minor can act as a witness provided that they are mature enough to understand their act, however it is best to avoid this if possible.  Ideally, witnesses should be completely independent, but this is not possible in certain circumstances.  It is acceptable for family members to witness the signing of the Will as long as they are not named as a beneficiary or a spouse/civil partner of a beneficiary as they will forfeit their gift.  Witnesses must also have the mental capacity to understand their action.

Lasting Powers of Attorney are only for the elderly

Mental capacity is not something you only lose through conditions such as dementia or purely due to old age.  Losing mental capacity can happen at any age, whether that be from an accident or injury, certain mental health conditions, or from abuse of drugs/alcohol.

There is also a common misconception that someone’s ‘next of kin’ can make decisions on behalf of a person if that person is incapacitated and this is not the case.

Instructing uninsured estate planners

It is extremely important to do your research when finding an estate planner and make sure you check their credentials before engaging them for their services or handing over any money.  As will writing is unregulated, there are will writers out there who do not have any professional training or qualifications, or any fundamental knowledge of estate planning.  This can lead to a number of issues such as incorrect or outdated advice, Wills that are invalid or a whole or partial intestacy of an estate.

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 reasons for using a Society member are as follows:

• Members continue to train on a yearly basis doing a minimum of 24 hours
• Members hold professional indemnity insurance with a minimal level cover of £2 million
• Members must adhere to our code of practice and complaints procedure
• Members are only admitted to the Society after completing a stringent and robust application process
• Members are entitled to use our technical advice service, run by our Technical team
• Members offer a statutory cooling-off period of 14 days in accordance with the Consumer Contract Regulations

All SWW members carry a photo ID card, and you can check their membership status at any time by looking them up on our ‘Find a member’ page, or by calling head office for us to check our database for you.

I only have one beneficiary

If you only name one beneficiary and they die before you, or cannot inherit for any reason, then your estate will fall in line with the rules of intestacy.  This could mean that your estate goes to a distant family member or the Crown, which may not be what you want.  Therefore, it is always best to name a reserve beneficiary.  Charities are always a good option as everything passes free of inheritance tax.

Not being specific enough

Gifts in Wills can fail due to uncertainty if they are too vague.  A Will must clearly state what is being gifted and who the beneficiary is.  This may sound like an obvious point, however we still see mistakes being made.  Some real examples we have seen are:

• “The bulk of my estate”
• “Some of my best linen”
• “I give £1000 to each of my friends”

All of these examples would be too uncertain and would therefore fail.  There is no clear definition of “the bulk of” or “some of”.  Using classes of beneficiaries is fine as long as they are clear and can be defined such as “my children”, whereas there is no way of identifying everyone who would be someone’s friend.

If you are interested in speaking to someone regarding your estate planning, please visit our Find a member page to search for a SWW Member nearby or call the office on 01522 687 888 and a member of the team will be more than happy to help.