Susan Fairless article – Where there’s a Will

Jan Shankar of Amia talks to Susan Fairless, a legal expert, about everything to do with Wills - myths, benefits, facts and key things to take into consideration when either writing or updating your Will. The essentials are right here!

We all know we should write a Will - yet lots of us put it off! Why do you think this is?

Occasionally, I meet with a client who confesses that they have been afraid to write a Will. They fear that "putting their affairs in order" will be inviting death. Given the number of people I see who are making their second or third Will, I can confidently reassure nervous clients that their fears are unfounded!

For most people, however, the reasons are more simple. People often feel that they are too busy with their lives in the present to think about arrangements for the future. Most people think that making a Will is far more complex and time consuming than it actually is. Once they actually turn their mind to it, they realise it wasn't as hard as they imagined it would be.

What would you say are the main benefits of writing a will?

A properly drawn-up Will is an inexpensive way of avoiding difficulties for your relatives, business associates and friends in the future, in the event of your death. It also ensures that you are the person in control of the final destination of your estate. By law, you are allowed to leave anything you own outright to any person or organisation you desire. You can, if you so choose, even stipulate that they fulfill certain criteria to receive assets. For example, you could leave shares in your business to your son on the basis that he attends 90% of meetings. Or you could follow the example set by Samuel Bratt who died in 1960. He left his wife £330,000 on the condition that she smoked five cigars a day - she had never let him smoke during their marriage!

Some people use their Will to achieve things that they could not achieve in life - such as Andre Tchaikowsky, a pianist and composer who died in 1982. By his Will, he left his body to medical science and directed that, after they had finished with it, his skull should be offered to the Royal Shakespeare Company for use in theatrical performance. This was done and his wish was finally granted in 2008 when David Tennant used the skull in a production of Hamlet, for the 'Alas, poor Yorrick' speech!

There really is no substitute for a Will to ensure that your wishes are carried out - whatever they are.

What are the key things to bear in mind/think about when writing a Will?

A Will should be tailored to your personal circumstances. Think about matters such as:-

• What is your marital status? Is this likely to change in the near future?
• What is your family situation? Are there any special factors, such as step-children or disabled relatives?
• Do you have minor children (under the age of 18)? Who would you want to care for them if you were not around? What age would you want them to inherit?
• Do you have property abroad, or business assets?
• Do you have particular wishes about your funeral?
• Who do you want to be responsible for carrying out your wishes after your death (your executors)?
• How do you want to divide your assets? Do you want to give smaller gifts? Do you want to give money to charity?

Many people assume that everything will just naturally pass on to their next of kin if they don't get around to writing a Will? How true is this?

When a person dies without having made a Will, they are said to be 'intestate' and their estate passes under rules set out by the government. The rules for the division of an intestate estate are very strict. The estate does not automatically pass simply to the next of kin. The rules take into account matters such as whether the deceased was married or in a civil partnership; whether they had children; and how much they were worth. The rules of intestacy also do not take into account unmarried couples - there is no such thing as a 'common law spouse', meaning that unmarried partners will be left with nothing at all upon an intestacy.

What are some of the challenges to be faced if someone dies without writing a Will?

In cases where someone dies with young children, those children may be left without a legal guardian to make decisions about where they live, their schooling and their upbringing. If nobody else is available, then the children would be placed in the care of social services.

If you die without a Will, your estate may end up paying unnecessarily high taxes. Given that inheritance tax is chargeable at 40% once you get above £325,000, the bill mounts up very quickly, and the savings which can be made through careful planning can be significant.

How long do you think it would take the "typical" person to get their will drafted/written?

The timescale for making a Will is really driven by the client. My preferred approach is to take instructions in person, before drafting the Will to send out to my client to check. Then, once the client has approved the Will, they come back in to see me again to have the Will executed. How long this takes depends on the client and how quickly they get back to me at each stage. I would say that, on average, the whole process can take a few weeks. Of course, complicated matters can take longer, especially where clients want time to consider their options, or if there have to be several meetings to discuss the minutiae of matters.

Conversely, of course, a Will can be finalised in a much shorter time period.

Inevitably, each summer I will have a handful of clients who turn up to see me with the announcement that they are soon to go off on holiday and they need to have their Will finalised before they go. Of course, I do my best to get things turned around very quickly for them, but leaving things to the last minute often results in a 'quick fix' Will that needs to be looked at again when my client has more time to think and is less stressed! Not a sensible approach to things.

What are the main areas/points you find people can overlook when writing a will?

I find that, in many cases, people do not really think about how complicated their lives can be! As part of the process of making a Will, I walk my clients through their lives. We look at their finances, at their families and at any other factors which may be relevant.

I often meet people who run their own businesses, who have not stopped to consider what would happen if they simply were not there anymore. For those clients, making a Will can actually be the starting point to dealing with important issues to put their business affairs in order generally.

It is increasingly common to meet people with second families and I often find that these clients have not always fully considered the implications and impact of who they leave their money to - and the financial and emotional "fallout" of those decisions.

I also find that people do not always consider how best disabled relatives can be provided for in a way that gives them help and support without compromising their dignity or independence.

What are the benefits to getting your Will written with the help of a legal expert?

Making a Will is one of the most important steps of your life. The impact of your choices affects not only you, but all of your loved ones too. Getting it wrong can have disastrous consequences - both financial and emotional. Assuming that you can work your own way through making a Will yourself is a real gamble.

I would always advise you to invest in a professionally drafted Will - especially if your affairs are in any way complicated. Furthermore, I would encourage you to consider your choice of advisor carefully. Currently, anyone can set up as a Will writer, requiring no specialist training and with no safety net in place to protect your Will and file, should the business cease trading. You should always make sure that whoever you are trusting to deal with such important matters is a properly regulated and insured specialist. I would always recommend getting your Will drafted by a firm of Solicitors with specialists in this area, so you can be confident that you are getting the proper advice.

Once you have written your Will, how often/when should you review it?

I contact my clients every five years to invite them to review their Wills as a matter of course. Generally though, once you have made a Will, it should be reviewed when you have some kind of a change in your circumstances, such as:-

• You get married or enter a civil partnership.
• Marriage or civil partnership revokes a Will.
• Divorce or annulment of civil partnership does not.
• You are unmarried but have a new partner.
• You get divorced.
• You have a baby or a grandchild is born.
• You re-marry.
• You change your mind about who you want to inherit.
• You wish to add a charity as a beneficiary
• Your financial situation changes.

Who else should you tell about your Will?

It is advisable to let your executors know where you have stored your Will. I was once told of someone who had made a Will and then hidden it behind a cupboard in their house! It was by sheer chance that their family found the Will after their death. Nobody had known where it was, or if a Will had been made at all. I always recommend to my clients that they store the Will with me here at Wards Solicitors - we do not charge our clients for storage, and that way my clients can be confident that their Will is safe and protected, no matter what.

How can you ensure that your wishes really are upheld after your death?

The first step is to choose your executors wisely. They are going to be the people who carry out the contents of your Will. Make sure that you choose people who are willing and able to do this. It is common to choose friends or family members, but you do not have to do so. You may prefer to appoint professional executors.

I have found that people appoint professional executors for a variety of reasons. Some do not wish their families to be burdened at a time when they are grieving. Others feel that there will be matters with regards to trusts, taxation, business assets or foreign property which may be better dealt with by a professional. There are also circumstances where the interests of family members may be conflicting, and a professional executor can stand as a neutral and independent party.

What other tips do you have in relation to writing a will?

Don't put it off. The unexpected does happen at times and once you have made your Will, you will have the peace of mind that brings. Like most things - once you knuckle down to it, it's easier than you think. Consider your Will as an investment in your future. Don't try and cut corners for short term savings - they are rarely worth it in the end.