We all know what a will is, don’t we? Or do we? It may seem like an obvious thing, but when Macmillan Cancer Support carried out a survey and discovered that 98 percent of people couldn’t accurately describe what a will is actually for, it may be time to think again. Although most people understand that a will is about ensuring that your beneficiaries receive what you want them to receive, there are other factors, and this is what was missing from most explanations.
Those other factors include the fact that having a will means that you won’t die ‘intestate’, which makes things very difficult for your family members, and makes probate a much longer drawn out thing than it really should be. It also doesn’t take into account the fact that a will needs to be updated after a re-marriage, or a divorce. It is a little more complicated than some people imagine, but this should not mean that you shouldn’t write a will – if anything, it means that writing a will simplifies things after you have died.
Macmillan’s survey also said that around 70 percent of people like to plan ahead, but that only 40 percent of the UK’s adult population had actually written their will. This is most likely due to the fact that people still find talking about – or even thinking about – death a taboo, or a frightening prospect, and therefore they put it off. Unfortunately, when writing a will is so important, and when there are many companies and people who are happy to help in such an endeavour, not writing a will causes far more problems than writing one would ever do. A short time of feeling uncomfortable thinking about your own mortality is far better than leaving confusion and bad feeling for your family after you pass away.
The misunderstandings that come with the idea of will writing include thinking that you have to be over a certain age (40 is the one that most cite) before you can write one. This is borne out with evidence that shows that 80 percent of 18-34 year olds don’t have a will compared to just 32 percent of those over 55. Another confusion is the cost of will writing. It is often assumed that will writing is a very expensive process, when in reality the cost of usually a lot less than people think.
But the problem comes when people think wills are solely about money. And those who have very little in savings or no assets therefore don’t think that a will is relevant to them, or their families. This is not the case, however. Wills are about more than who gets what. They can also set out what the deceased would like to have happen after their death, and this is especially important if children are involved.
Writing a will has been the same for centuries, but it hasn’t changed very much. And that was fine until modern technology came into play – and modern lives. But now, in the 21st century, will writing is out of date and needs to be modernised.
How could that happen?
One idea is that small errors that a judge can easily see are unintentional mistakes, should be overlooked rather than making the entire will invalid. At the moment, an error such as not being in the room when your witnesses sign the will can lead to big problems when it comes to probate. If things like this can be overlooked then the court’s time, and the beneficiaries’ inheritance, can be organised much better.
Another idea is that a will could be written via text, email, or perhaps even voicemail. There are many new and diverse ways to communicate these days, and it seems strange that currently none of them can be used to communicate what someone wants to do with their estate and body after they have died.
Executing a will is also something that always takes a lot of time, and is hard work for the person tasked with the job. If a will could be executed electronically then it would save a lot of time and worry for everyone involved. Documents and information could be passed within seconds rather than days or even weeks.
Or how about lowering the age that you are able to write a will to 16? At the moment, you have to be 18 to write a legally valid will, but lowering the age to 16 may enable young people to take more responsibility, and for those who are terminally ill to be able to make their own decisions about what will happen.
The rules that revolve around writing a will came into force – in the main – during the Victorian era when will writing became more regulated and had a legal status. However, a review by the Law Commission has concluded that these rules are behind the times, and many of them need to be updated to comply with modern living. The worry is that because these rules don’t seem to match up to how we live today, they could be one of the reasons why many people don’t write a will in the first place.
When you write a will, you must follow specific procedures in order for it to be seen as valid. If the rules that have been put in place are not followed, then your will may not be enforced, even if you have made your final wishes clear.
One of the main issues that the Law Commission found in the old rules around wills was the matter of mental capacity. When the term was created, it didn’t take into account illnesses such as dementia, which is changeable, giving the sufferer good days and bad days. Someone with early onset dementia, for example, may have problems with short term memory, but that does not mean that they do not fully understand what they want to do regarding their will. The law as it stands, however, prevents them from writing a will if they have been diagnosed with the disease, which can be problematic for them and their family, as well as highly frustrating.
Times have changed dramatically, and in this modern world it should be quick and easy to create a will that will be valid and lay out all the testator’s wishes. Electronic wills – something that the Law Commission is recommending become commonplace – will certainly help with this, but updated laws regarding medical issues that we now have a much better understanding off will be a great step forward.
Over the last 12 months, HMRC has collected over £5 billion in inheritance tax. Inheritance tax has never reached this record level in one year before, and the level for this most recent period is 19 percent higher than in the previous year.
Why is this? Why is so much more money being paid in inheritance tax?
The first reason is that although the IHT allowance has been frozen at £325,000 for a number of years now, house prices have continued to rise. This means that more estates than ever are worth more than the allowance. However, this should be combated thanks to the new nil-rate tax band (essentially allowing the estate an extra £100,000 grace if it is being left to a descendent) which came in in April 2017.
There are a number of other ways to reduce your IHT liability. One is to give away your assets so that they are not part of your estate when you die. You can make one gift per year that is worth £3000. Any more than that and inheritance tax will be due. You can choose to make that gift in one lump sum, or you can split it into bundles of £250 at a time. You cannot choose to give small £250 gifts as well as the £3000 gift to the same person, however.
Special dispensation is given for wedding gifts. You can give as much as £5000 to each of your children. The amount reduces to £2500 for grandchildren, and for anyone else it is £1000. Also, if you use your money to support a child in full time education, there will be no IHT due.
It is possible to make other transfers and gifts, but not everything will automatically be exempt – some will have the caveat that you need to live for at least seven years after the gift is given. If you do not, then IHT may be due when you do die.
Writing a will is a job that not many people relish. But, once it’s done, it’s done. Right? Not necessarily. According to studies, the average useful lifespan of a will is around eight years. What does that mean? It means that, in many cases, within eight years of you writing your will something will have happened to cause you to need to change it. It won’t be the case with everyone, and a large number of people really can simply write their will and then forget all about it (apart from letting loved ones know where it’s kept, of course). However, wills do sometimes need to be updated, and if they aren’t then there can be problems when it comes to probate and executing the will.
When should you update your will?
If something major happens in your life, then think how that will impact your will. Marriage is one of these major life events, as is divorce. If either of these things occur after you have initially written your will, then you will most likely need to update it to include or remove people from it.
Children are another reason to update your will. It is likely that you will want them to inherit some or all of your estate, so they need to be mentioned in your will. Guardians are also an important aspect to include if your children are under 18. And if they turn 18 after you have written the will then the guardians should be removed as they will not be required.
The death of anyone who is mentioned in your will will also mean that it needs updating, and the same is true if you fall out with anyone who was originally meant to inherit. If you change your mind, change your will, otherwise the people you don’t want to inherit will do so anyway.
There is a lot of money owed by a lot of people in this world. Most of it is manageable, although not entirely pleasant. Some of it is difficult. A little is entirely impossible. But no matter the affordability of the debt that you have, there is something that you should know about it – it does not die when you do. Someone will still need to service that debt when you are gone.
Most of the time, it is your estate that will need to pay off the debts. If there isn’t enough money within your property and possessions, the leftover debt is passed on to loved ones. This is just one of the reasons why writing a will is so important. And it is a good reason to keep an eye on the debt that you are accumulating. Is it really worth it if it will become a massive burden to those you love when you die? You may think that by paying off the minimum from your debts each month is a good idea, giving you more in your pocket in general, and allowing you to save up money to leave to your loved ones. But that saved money will actually be needed to pay off the debts that are left, so you may as well get rid of them while you’re still alive.
Doing this will enable you to then go on to save money after your debt is paid, and that money will be able to be passed on to whomever you want it to go for. That’s a much better legacy than leaving a pile of unpaid bills for family members to sort out.
Signing the wrong will. It sounds like a mistake that could never happen, but in reality it does. It is essential that the testator pays rigorous attention to what they are doing and specifically what they are signing. Witnesses also need to look at the documents. Their presence isn’t enough; they need to know exactly what they are witnessing, especially if there is some detail that they missed which becomes part of a contestation of the will!
If you think that this doesn’t happen, that it isn’t possible, then the case of Marley v Rawlings might change your mind.
Mr and Mrs Rawlings prepared their wills at the same time. They each left their estate to their surviving spouse, with other beneficiaries inheriting part of the estate if their spouse had already died. One of these beneficiaries was a Mr Marley who, although not related to the couple, was regarded as a member of the family.
Unfortunately, what no one, including the solicitor and the witnesses, noticed at the time, and for some time afterwards, was that Mr Rawlings had signed Mrs Rawlings’ will, and vice versa.
When Mrs Rawlings died, her part of the estate went straight to Mr Rawlings without any problems. The mistake regarding the signature was not picked up at that point. It wasn’t, in fact, until Mr Rawlings also died that the error was found.
What did it mean?
In short, it meant that Mr Rawlings’ will was made invalid, which in turn meant that his estate became subject to intestacy rules. Mr Marley, therefore, was no longer able to inherit his share, since he was not a blood relation of Mr Rawlings.
It was touch and go as to whether the will would be able to be rectified when Mr Marley contested it. This was not purely a clerical error, such as a typo, which would have been easy to fix. This was a will that was, in reality, unsigned, at least by the person to whom it related. In the end, the judge found that, since Mr Rawlings’ intentions were clear, the will could be changed to reflect that, and therefore Mr Marley could inherit his share.
The court case took time, money, and energy to resolve, all of which could have been avoided if the solicitor, the witnesses, and the testators themselves had taken the time to read what was being signed.
Writing a will – or even simply thinking about writing a will – is a delicate subject, and not one that many people enjoy. It is a necessity, and once it is done it is a true relief, but the idea of it worries many.
So when Assist Law, based in Somerset, made unsolicited marketing calls to people who were registered with the Telephone Preference Service (TPS), they caused annoyance and upset. The cold calls that they made resulted in 99 different complaints in 2016, and that large number meant that the company was investigated by the Information Commissioner’s Office (ICO). Their findings were that there would have been many more cold calls made to people who didn’t raise a complaint – but that did not mean that they were not angry or upset about receiving the phone calls.
The confusion seems to have come from the fact that Assist Law used a third party to make the calls, and that third party assured them that the people they were calling had opted in for marketing calls through entering competitions or enquiring online. However, it was determined that this was not always the case. The ICO said that it was up to the company hiring the third party and overseeing the cold calling to ensure that no one registered with the TPS was being phoned.
The findings determined that Assist Law had been negligent as they should have checked who was being contacted.
They have been issued a fine of £30,000.
Writing a will is not everyone’s favourite activity, even though everyone seems to agree that it is important. One of the problems can be that people aren’t sure what to write in the will itself, or what to leave to whom. And if they have very few assets and possessions, it can feel like an even harder choice.
But simply by speaking to others about it, ideas can be formed and, in a group setting, more wills are written. Even if the conversation is about leaving assets or a certain amount of money to charity, for example – if one person says they are interested in doing so, others tend to follow suit. Or at least start thinking about it. Which is good news. In fact, research recently carried out at Bristol University found that one person stating that they were going to be leaving something to a charity in their will prompted a 40 percent increase in others around them choosing to do the same.
So should will writing become a class in school, or an extra credit module at university? Should all employers get their employees in a room and, as well as pension discussions, have everyone start talking about their wills? Would that work? Let us know what you think.
No one likes thinking about making their own will. It’s a daunting prospect. It’s frightening to think of our own mortality, and for many – apart from the perceived complicated nature of creating a last will and testament – it’s this thought that means that they put it off. And sometimes it’s put off until it’s too late.
Which is why for some people, the idea of a DIY will appeals. Completing an online form or filling in the details in a pack that can be found in the Post Office and various other places seems like an easy, practical, almost comforting solution to this big worry that many people have. If it can be dealt with that easily, people might think, then perhaps it not that big of a deal.
And although DIY will writing kits can be a great solution for some people, for others it’s not a good idea to even think about using one. If your estate is very simple, then a DIY will could indeed be a possibility, but if there is even a hint that the estate might be a little more complicated, then speaking to an expert and asking for help in drawing up a fully comprehensive will would be a better option. The old adage of you get what you pay for can certainly hold true when it comes to wills, and you don’t want your estate to be eaten up in legal bills because you chose to save money by DIY-ing your will in the first place.
The cost of a properly made will can be off putting – compare £10 for a DIY pack to £300 for a solicitor’s will and you can see why – but there is quality in that more expensive price. This can save time and money later on. And it can prevent squabbles between family members, which is the last thing anyone wants after a loved one’s death.
If there are any errors in a will, it can mean that the entire thing is invalidated. The number of mistakes found in DIY wills is, of course, much more than those found in wills that are checked over by a solicitor, or professional will writer. These mistakes include problems with witnesses (or forgetting witnesses altogether), neglecting to name a guardian, failing to sign the will, or forgetting to put money into a trust account that is mentioned.
Without a solicitor or expert will writer’s involvement, the will could even be locked away and not even found once the deceased has passed away. It might also never have been updated – an expert’s advice may cost more, but it tells you more as well.