PlayMaking a will: It's the biggest financial transaction you will ever make and a way of preventing ugly family squabbles after your death. So why do only one in four of us have one?
Unbelievably, that even includes as many as two million people aged over 65 who have failed to make provision for those they leave behind.
Tonight explores this ‘ticking time bomb’ for families and why absent or badly drawn wills are leading morepeople to contest them.
With property still worth more than ever, in spite of falling prices, and with family structures becoming increasingly complex, law firms have reported a two hundred percent increase in will disputes in the past three years.
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.
This of course can cause problems often with feuding family members turning to solicitors to sort out the mess out – a harrowing, lengthy and costly process.
According to the Administration of Estates Act - If you are married or have a civil partner and have children, your spouse or civil partner will be entitled to the first £125,000 of the estate and all of your personal possessions but a limited interest in anything else. Surviving children or grandchildren will able to claim some of the estate if it exceeds £125,000.
If you are married or have a civil partner and do not have children, your spouse or civil partner will be entitled to at least £200,000 and your personal possessions. Anything else is divided between your spouse or civil partner and other surviving relatives.
If you are not married or do not have a civil partner, your estate will pass to relatives according to a certain order; ie, if you have children the estate goes to them; if not it goes to your parents. No surviving parents? Then it goes to any brothers or sisters, and so on. If you have no surviving relatives, your estate will go to the Crown.
One group that is recognised but is quite complex is step-children. They are not always provided for.
In Lorraine Hockey’s case her mother died intestate, so her worldly possessions went direct to her husband, Lorraine’s step father. When he also died intestate, his estate was distributed between his siblings as he had no children and Lorraine received nothing.
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 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.
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.
Many people try and avoid family squabbles and the tax man and decide to leave their estate to charity but this can provoke claims from family and dependants.
Inheritance tax is applicable above £312,000 when leaving your estate to your nearest and dearest. Legacies left to charities, however, are tax free.
Jean Mason’s sister left her estate to several animal charities. However, shortly before she passed away, she decided that Jean should have her estate and decided to give her the deeds so she could stay on at her house.
Because nothing was put in writing, Jean challenged the will but lost and was evicted from her home.
There are many ways that people can make a Will. Either by visiting a solicitor, buying a DIY Will from a newsagents or supermarket or by arranging a visit with a Will writer.
Anyone can write a will and charge you for it. So professional ‘will writers’ have sprung up everywhere.
The idea is attractive because a will writer costs less than a solicitor. And they are more likely to make the experiencemore accessible with home visits.
However, there may be disadvantages that could prove costly later. Some will writers may be poorly trained and have little experience. Checking that they belong to one of the self-regulatory bodies is one way of ensuring a good service and that you are satisfied with their training and insurance.
Tonight secretly filmed a will writing company in the Midlands after receiving a number of complaints.
We ask probate solicitor, Mary Butler from Law firm, Bell and Buxton and Paul Sharpe, Chairman of the Institute of Professional Will writers (IPW) to comment on the service they provided.
In spite of the government's attempts, the industry as a whole remains unregulated. Paul Sharpe, Chairman of the Institute of Professional Will Writers (IPW) has said, “The biggest issues in the Will Writing market at the moment are that it is entirely unregulated; anybody can set themselves up as a Will Writer. Somebody who was doing something completely different yesterday can set up today offering Will Writing services and the big problem is that those problems that they create won't surface for 5/10/15/20 years by which time it will be too late to go back and correct those errors.”
Will writers aren’t all bad though and if you do decide to use one, then please make sure they are an accredited member of the IPW. A list of their members can be found on their website below.
Another cost effective way of writing your will is buying a DIY pack. They come at around £9.99 and on the face of it a credit crunch bargain.
However, it does come with problems. Henry Frydenson, Probate lawyer at Mishcon De Reya says “Lay members of the public, highly intelligent as they may be, are not familiar in the finer points of the law in relation to a Will. Problems can occur if people who should be provided for in a Will aren't provided for.
“Let alone the finer points that inevitably cause the disputes that I and other solicitors see in disputing Wills after death.”
Anyone can buy a DIY will and it isn’t necessarily witnessed by a legal professional. Therefore forging one is a lot easier.
David Allen thought that something wasn’t right when his step mother’s will was finally read shortly after her death. His step mother also had three other children and had always told them that her estate would be divided equally between the four of them. When he was told that he was to only receive £2,000 and his only step-sister, Dinah was to receive the whole estate he knew something wasn’t right and eventually called in the Police. His step-sister had bought a DIY Will and forged her mother’s signature so she would inherit the estate.
It took David two years to get justice and his step-sister was finally convicted of fraud and sentenced to seven months in prison.
There are some circumstances however, where it would be best to seek legal advice.
If your circumstances are complicated or the way you wish to pass your assets on is very detailed; you have property overseas or there is a business involved; you have been married before or have children from a previous marriage or someone who is unable to care for him- or herself is financially dependent on you.
Henry Frydenson, Chairman of the Association of Contentious Trust and Probate Specialists and consultant at Mishcon de Reya gives a step by step will writing guide.
Will Writing Guide
1. Just do it!
It is not going to be very hard, it is not going to take very long, it won’t even cost a lot of money but you should do it.
2. Revocation
The rule is that a new will makes an earlier will invalid, but this is only the case if the new will is valid.
3. Mutual Wills
It is quite common for married couples to get mutual wills i.e. two documents that have the same provisions but are executed separately by husband and wife.
4. Intention to marry
If there is an intention to marry a person then it is important that this is expressed in the will.
5. Appointment of Executors
Make sure that you appoint Executors and trustees, these will be the people who carry out the administration of the estate.
6. Appointment of Guardians
If you have minor children it is important to appoint guardians. Usually the simpler the appointment of guardian clause is, the better it is.
7. Directions for burial
It is not obligatory to have a clause in the will about the directions for burial, but if this is included, it provides a record of the testator's choice.
8. Monetary legacies
Monetary legacies are usually expressed to be free or subject to tax.
9. Specific legacies
Similarly, specific legacies of particular assets can be given in the will.
11. Residue
Following the payment of the specific and monetary legacies, it is usual to have a clause dealing with whatever is left in the Estate, known as the residue.
12. Administrative provisions
To make sure that the executors of a will have the power to deal with the all the assets in the estate administrative provisions are usually included at the end of a will.
13. Signature
A will must be in writing and the testator must sign it in the presence of two witnesses. The two witnesses must then each sign the will in the presence of the testator.
14. Capacity
A testator must have necessary mental capacity to make a Will.
15. Inheritance Act 1975
Strange as it may sound, it is not possible to prevent several classes of persons from making a claim under the Inheritance Act 1975. You may be entitled to seek financial provision from the deceased's estate if you are:
• A spouse or civil partner
• A former spouse / civil partner provided you have not remarried / entered into a new civil partnership
• A child of the deceased
• Any person (not being a child of the deceased) who was treated as a ‘child of the family' of the deceased.
• Any person being partly or wholly maintained by the deceased
Claims must be made within 6 months of the date of the grant of representation.
NOTE - The above information is for guidance purposes only. It is not a substitute for proper legal advice and should not be relied on.
Contacts
The Law Society
http://www.lawsociety.org.uk/home.law
(for a list of reputable lawyers)
Association of Contentious Trust and Probate Specialists
http://www.actaps.com/
(for a list of reputable contentious probate lawyers)
Solicitors Regulation Authority
http://www.sra.org.uk/consumers/consumers.page
(regulatory body of The Law Society)
Institute of Professional Will Writers
http://www.ipw.org.uk/
(for a list of reputable will writers)
Law pack
http://www.lawpack.co.uk/
(to purchase or enquire about DIY wills)
HM Revenue & Customs
www.hmrc.gov.uk
(to check inheritance tax bands)
Consumer direct
http://www.consumerdirect.gov.uk/
(They will pass on issues to your local Trading Standards)
Citizens Advice Bureau
http://www.citizensadvice.org.uk/
Will Aid
http://www.willaid.org.uk/
Fraser and Fraser
http://www.fraserandfraser.com/
(Genealogists and International Probate Researchers, to track missing heirs)
Mishcon de Reya
http://www.mishcon.com/
Bell and Buxton Solicitors
http://www.bellbuxton.co.uk/
The Society of Will Writers
http://www.thesocietyofwillwriters.co.uk/
