Autumn 2009
ROUNDABOUT MAGAZINE AUTUMN 2009
THE LEGAL HELP COLUMNHello and welcome to a new and regular feature in “Roundabout”. I have been employed at Bowcock Cuerden for several years now on the admin side of the business. I had no previous legal experience and, like most of us, I had only ever visited a solicitor’s office when I absolutely had to (a bit like the dentists, doctors, car mechanics etc.). However, it has become very clear to me that a little bit of professional advice at the right time can save a lot of time, stress and expense in the long run (a bit like the dentists, doctors, car mechanics etc.). As a previous contributor to this magazine I hit on the idea of producing an article based on a series of questions and answers, on everyday legal matters, that I hope will be of interest to the people of Wistaston. With the kind support of the Directors and Lawyers of Bowcock Cuerden I am starting with the subject that affects us all, and one we least like to talk about, Wills. I have been talking to David Bevan, who is a member of STEP, The Society of Trust and Estate Practitioners and is the senior member of the firm’s Private Client Team which deals with wills and many other matters for the private individual as opposed to the firm’s many corporate and commercial clients.
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David, give me a couple of good reasons why I should make a Will.
There are many, but two of the most important are, firstly, to ensure that your property is disposed of in accordance with your wishes and, secondly, to avoid causing family arguments and complex legal disputes as to who has the right to deal with your Estate, and thereby make it easier for those left behind.
But, if I have no children, everything is automatically inherited by my wife, so a Will isn’t essential, is it?
That is not true in all cases. The laws of Intestacy certainly ensure that the surviving spouse will inherit some of the Estate, but depending on the size of that Estate some may be divided amongst other surviving blood relatives. It is particularly important to make a Will if you are not married, or not in a registered civil partnership. The law does not automatically recognise co-habitants, and even if the couple have been together for many years the surviving partner can be left with nothing.
I have no off-shore accounts, share portfolios and only a small family - surely I could use one of the blank Will forms that I have seen for sale in stationers?
Of course you could, but you really do have to understand what you are doing. You may have a good idea of what your assets are and how you would like to see them distributed, but how good are you on Property Trusts in relation to possible Care home fees, or Inheritance Tax planning? In addition, a Will must be precisely set out to help avoid possible costly legal challenges that may result in your estate being disposed of in ways you did not wish. It is a sad truth that many of these home made Wills have caused an awful lot of difficulties for people named as beneficiaries.
What about costs?
Clients are often surprised at how little it costs to instruct a specialist solicitor to complete their Wills and it is certainly a lot cheaper than sorting out the complex issues that can be created by a Will that is, to put it tactfully, less than comprehensive.
The thing to do is to phone the solicitor and explain your requirements. You are entitled to an accurate guide to costs before embarking on the will making process.
So I decide to use a professional to draw up my Will. I understand I need to find 2 people to take on the task of sorting my affairs out when I die.
You mean Executors. Although 2 Executors is the norm you can actually name more, but usually 4 will suffice. They should be trusted friends or family members who, normally, will be younger than you. Another alternative is to name your solicitor as an Executor. This can make sense in several ways. Executors will often approach a solicitor for help with obtaining probate or selling assets, so having one already named and holding the will can be a great help at a difficult time. Also, should that particular solicitor leave the firm, a successor within the firm will automatically assume the role when needed, so you are guaranteed that there will always be at least one Executor able to carry out your wishes when the time comes.
Is it true that Executors cannot also be beneficiaries of the Will?
That is a common misconception. Executors can be beneficiaries of the Will, it is the 2 witnesses who are required to sign the Will that can not be in a position to benefit from it. This is better put the other way round: beneficiaries named in the Will must not act as witnesses. The principle goes even further - that the married partner of a witness cannot inherit, either.
Other than that, are there any other requirements for a witness?
They must be over 18 and able to witness the signature of the person making the Will and when the Will is signed, must actually witness that person’s signature as well as the other witness’ signature. A witness has no responsibility for the contents of the Will – in fact they need know nothing of its contents.
I have got a list of my assets and what I would like to be done with them, a couple of executors and two witnesses - is that all you need?
That is certainly the central part of the process. However, depending on the size and nature of the estate, it may be prudent to consider matters relating to Inheritance Tax and Property Trusts which can help protect some of the value of the estate from possible Care Home fees in the future. Also, if you would like to ensure that a specific item is inherited by a particular person, for example a diamond ring to a favourite niece, it would be appropriate to draft a “letter of wishes” to ensure that the bequest is carried out, unless you specifically mention it in the will. It is simply a matter of spending a little time with each client to understand their estate and their wishes and then giving the appropriate advice for their individual circumstance. You can never use a “one size fits all” approach to Wills and estate planning.
OK, I have taken your estate planning advice, my Will is signed and witnessed, what happens next?
Normally, the client will receive copies of all documents, and the original Will is stored securely by the solicitors.
Is there a charge for the storage?
I can only speak for my own firm in saying there is no charge, but I am aware that a small charge is made by some firms.
So that is the end of the process?
You will have a valid Will in place which is important for your own peace of mind as well as your family. However changes in Government legislation, your own circumstances and those of your family can make it desirable to keep the provisions of your Will under review.
What do you suggest?
I would normally recommend that a Will is reviewed at least every five years, and more often in later life. It is normally a quick and easy process.
One final question for now, if I have died but left no record of where my Will is kept, how would my family find it?
Although Wills can be recorded with the Principal Registry of the Family Division in London, there is no central record of all Wills. We do have systems in place which can enable us to track down missing Wills, but this can be time consuming. I can fully understand why someone may not wish to keep a copy of their Will around the house, but it is very helpful if they leave a note at least stating where the Will can be found.
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I think that is just about all we have space for in this edition but I hope to cover some related topics next time such as probate, inheritance tax, property trusts and Lasting Power of Attorney. If you have any comments on this article or would like to suggest subjects for future editions then please contact me on the email address below.
Finally I must point out that this article is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.
Graeme Barber
Bowcock Cuerden LLP
01270 611106
Email: info@bowcockcuerden.co.uk
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