Will writing questions answered

Our Head of Wills, Solicitor James Antoniou answers common questions asked about Wills and the Will writing process in England and Wales.

James talks with mother of two and professional blogger Jo Middleton, who had not made a Will until she came to Co-op Legal Services.

Jo Middleton Hi my name’s Jo Middleton. I write a blog called the Slummy Single Mummy. I’ve got two daughters they are 12 and 19. And I’m very ashamed to say that up until this week I have never had a Will which I know is really terrible. So I’m here today at Co-op Legal Services in Bristol to talk to James Antoniou. Who’s going to tell me everything I need to know about writing a Will.

James Antoniou Hello Jo.

Jo Middleton Hello James. So at the moment I don’t have a Will. What happens if I die? What’s the kind of default position.

James Antoniou Okay. So if you pass away without a Will in place then that’s what’s called the Intestacy Rules come into play. And this is basically the laws which govern how your estate is to be distributed depending upon which relatives you leave.

Jo Middleton Okay, I know there are a lot of people who kind of put off making a Will because they think it’s really complicated or maybe really expensive. Is there like a standard amount that people should expect to pay for having a Will written?

James Antoniou It depends who writes the Wills and there is a range of prices. You can always find things that are free. But the question is whether or not what you’re getting is the right thing for you. A typical professionally drafted Will, will cost around about £150 for a single Will. Maybe £250 for what we would call a Mirror Will. So that would be a mirror for a couple that wanted had similar wishes.

Jo Middleton And for that would you expect the person writing the Will to be able to offer you kind of advice or are they just there to kind of take down your wishes.

James Antoniou Well if you’re getting a professional… professionally drafted Will you’d certainly expect to have a conversation about your circumstances and make sure that you’ve actually considered not necessarily what you think you should have but also to consider other things like, for example, you may want everything to go to your children but actually what if one of your children had died before you. Would you want it to go to your surviving child or if that child had, had their own children would you want that shared to go down to your grandchildren and things like that. So it would be part of the conversation would be to explore perhaps the unexpected. And that’s the sort of the added value you get with going with somebody professional as opposed to just perhaps trying to write the Will yourself or using a form which is sort of predetermined and you’re filling in the boxes.

Jo Middleton Because I know a lot of people you see those kind of Will writing kits in Smiths or offers on Groupon and things like that. I guess they must have a place but then you’re relying on your own kind of a certain amount of your own expertise.

James Antoniou Exactly right and that’s the risk. You can still use those kits and come out with a valid Will but you’re obviously not getting the, the advice and expertise that goes around that Will. And also to let you know what your options are as well. So there maybe things that actually you didn’t know you could do in a Will that actually a professional would be able to explain to you.

Jo Middleton And are there certain things like parts of the process that make it official. Like could I just get a piece of paper and write down I want to leave everything to such and such and get a couple of friends to sign it? Would that be legally binding?

James Antoniou It doesn’t should like it to be honest with you but the, the laws do tell you how a Will needs to be signed in order for it to be actually valid and in force. Again the question is that will the right Will for you? Because one of the big problems with certain homemade Wills is the ambiguity. So actually there’s certain words and certain phrases that in your mind you are setting out what you want to do but actually after your death if there’s somebody else looking at what you’ve written it could be interpreted in different ways. So when we’re writing Wills we use a certain language and it’s not always the most popular. But we try and keep it as plain English as possible to set out very clearly err, what your wishes are to avoid ambiguity and to try and avoid disputes after your death.

Jo Middleton So I can’t just go like Agatha Christie style and get a… like a quill and a scroll and write it all out by hand. I quite fancied that. Okay. So you’ve mentioned briefly there about how you can allow in your Will for future changes in circumstances. Which I think’s quite interesting. So if… is there a way that you can write your Will so, for instance, if you know you’re going to be getting married soon or you’re pregnant but you don’t have the baby yet are there ways of incorporating those kind of future changes into a Will?

James Antoniou Absolutely. So provided that it’s worded in the right way, for example, one of the points you mentioned there was about marriage. Now when you get married the law automatically revokes any previous Will that you may have written. However, if you’re planning to get married to somebody or enter into a civil partnership then you can draft your Will in such a way that it takes into account the marriage that’s coming up. So that when you do get married the Will doesn’t get revoked. So you can future-proof it to that extent. What you can’t do is to say if I get married at all, at some point in the future then I don’t want this will to take effect. Then you can’t do that. It needs to be my marriage to X.

Jo Middleton Okay so named person. James Antoniou Correct. Jo Middleton So if you’d had a baby, for instance, and in your Will you’d said just shared between my children. Do the children have to be named?

James Antoniou No, no you can. In your Will you can draft in sort of classes of people. So you could say err, my children, my grandchildren, nieces and nephews if you like. And it’s basically what you have at the time that you pass away. If you don’t have children then that clause just won’t come into effect.

Jo Middleton Okay that’s interesting. And how about if you wanted to kind of leave money to charity or something like that. Is that something that you just… that’s just like an extra line is it that you can just include things like that?

James Antoniou Well it would be more than a line. But you could… you can of course leave gifts to charities in your Will. You can leave specific cash amounts if you want to. You can leave them a proportion of your estate or you can even leave them personal possessions if you want to. They can certainly be included as beneficiaries. You just need to be very clear on the, the name of the charity and you would also want to make reference to their Registered Charity Number. Because a lot of charities out there they’ve got quite similar names and certainly they’ve got similar purposes. So you just want again… this whole point about avoiding ambiguity making sure that your will is clear by exactly who you want to benefit.

Jo Middleton Mm. And I guess as well there must be kind of different ways of doing things. So you could specify an amount or I guess you could specify a percentage?

James Antoniou Yeah absolutely. So you can… when you draft your Will what you’re doing is putting in place a structure. So whether you are worth £100,000 when you pass away or £200,000. What you’re aiming to do is to say actually regardless of what I’ve got this is how I want my estate to be distributed. So you could still leave a cash fixed amount if you want to and then you can leave proportions so 30% here, 20% there, 10% here or equally between as many children as I have at the time of my death. That’s all possible.

Jo Middleton Because I read stories sometimes where, you know, like a… a family member dies and they’ve left a quarter of a million pounds, their entire estate to like the donkey sanctuary. And all the family are really annoyed. Are there ever grounds for kind of contesting that or saying actually that’s not fair? Or is it just that’s the person’s wishes and…

James Antoniou It does happen and it does create issues. It’s one of those things where when we’re advising our customers and clients that if they are looking to do something that is likely to cause issues in the future after their death amongst their family, then one consideration would be do I sit down and do I discuss with my family and explain the reasons why I’ve drafted my Will in this way. It’s not so much of the I’m leaving everything to charity but actually you see a lot of arguments over personal possessions. You know why did I leave… I mean why did mum leave my earrings… her earrings to my sister and not to me? You know it’s those sorts of things that can cause a lot of… a lot of problems within the family. So it’s always better again particularly if you’re dealing with children and the parent is leaving an unequal distribution between the children. There may be a very good reason for that. They may have made loans or gifts to the other child, for example, but if they’re looking at doing something like that we would recommend that they consider sitting down and having a frank conversation with the children as to why they’ve done their Will in that way. Because it can avoid a lot of problems after their death.

Jo Middleton So when you’re thinking about leaving money to children who are under 18. I mean hopefully that won’t happen with me. What’s the procedure then for kind of how they inherit that money? Because I’m guessing you can’t just give a nine year old like a house.

James Antoniou No, so you can in your Will, stipulate the age that the child is to receive the money. So the default position would be 18.

Jo Middleton But if you are mean you could say like 35 and tease them.

James Antoniou You could do but there wouldn’t be very many practical reasons for doing that. You can also include in your Will… you can also give certain powers in your Will. So that even if you did stipulage… err, stipulate quite a lengthy age contingency. So 25 or 30. You can give powers to your trustees who would be the guardians of that money whilst the child was under that age. You can give them powers to advance money to that child if, for example, they needed some money to go to university. So for their education, for their maintenance if they wanted to put a deposit down on a house for example. If there was a good reason you can include in your Will the powers for your trustees to do that.

Jo Middleton And when you’re appointing a trustee would that normally be the same person that you would appoint as their guardian? Or might there be reasons for..?

James Antoniou No normally it’s the same person. Normally it would be the same people because your executors are responsible for carrying out the terms of your Will and administering your estate. And your trustees are responsible for managing any ongoing trusts that arise from the terms of your Will. So they would normally be the same people because it’s still a a responsibility on both sides of the coin. There may be specific reasons to actually choose different trustees if you wanted to but most of the time the same.

Jo Middleton Okay. And when you’re thinking about appointing guardians obviously you need to sit down and talk to them about it first. But, I’m thinking of a circumstance where perhaps you’ve spoken to somebody, they’ve agreed they would be a guardian but then on the event of your death actually their circumstances have changed. Are they able to say actually no I don’t want to do that?

James Antoniou Yeah… no absolutely. They don’t have to take on the child. Obviously it would be a difficult situation but in those circumstances it would be for somebody else who was willing to take on that role to go to Court to get the Court Order for parental responsibility.

Jo Middleton And can you specify more than one person in your Will? So, you know, if so and so can’t do it.

James Antoniou You can appoint substitutes as well. What you need to think about is that when appointing guardians they’re going to essentially be stepping into your shoes and raising your child. So things to think about are what are their moral values, what are their ethical values, what are their religious beliefs? Are they going to bring the child up in the same manner with which you want your child to be brought up? Also and importantly is the age of the guardian that you appoint. Because many customers say well actually, you know, I’ll appoint my parents to look after my child. And that’s fine but the parents may at the time of writing the Will be 65. And they’re quite willing to take on the role however if you weren’t to pass away for another 10 years or another 15 years. They can be pushing onto 75, 80 years of age and they may not feel comfortable with having to look after a teenager perhaps at that time. Thinking ahead, planning ahead trying to think about what would happen. Not about what happens now but what would happen if you were to pass away in 5, 10, 15 years time.

Jo Middleton So I guess one of the other things that a lot of people think about when writing a Will is their funeral plans. Are you able to include funeral plans in the Will and is that legally binding?

James Antoniou So you can include your funeral wishes that’s quite a common clause in a Will. Whether you wish to be buried or whether you wish to be cremated. You can be as detailed as you like. If you want to you can set out what you would like everyone to wear. You could set out what songs you would like to be played etc. And that’s certainly possible. It’s not legally binding. It is an expression of a wish. So you would be relying upon your Executor to fulfil those wishes as you’ve set out in your Will. An alternative would be for you to actually arrange for a funeral plan during your lifetime. And that’s something that the Co-op offers. Where you can actually set out your own wishes, have a discussion to decide what you want to do. And then you can make reference to that funeral plan in the terms of your Will.

Jo Middleton Yeah. I’ve always been quite curious about that as to why such a legal document that the funeral aspect of it isn’t legally binding. Is there a reason?

James Antoniou Well in the… in the eyes of the law the disposal of the body or the responsibility for the disposal of the body lies with the Executor.

Jo Middleton I guess it doesn’t matter does it once you’re dead? (Chuckles)

James Antoniou We do get some customers who say that actually I’m not really fussed either way whether I’m buried or cremated. Why should it matter? And my answer to that is well actually at the point that you have passed away it’s normally quite a distressing time for the family. And it can be quite a confusing time as well. And what they want to do is make sure that your wishes are carried out. So even if you’re not 100% convinced one way or another my view is that it’s always better to put something down because actually what that does is it helps the family at a very difficult time just cling on to a bit of certainty.

Jo Middleton That’s a good point, yeah. So that’s one of the responsibilities of the Executor. What other responsibilities do they have?

James Antoniou So it’s… it’s heavily burdened with responsibility. It’s a very serious role. It’s the responsibility is to essentially wind up your life. So they will need to establish what assets are in your Estate. What liabilities are in your Estate. They will need to get values of those assets and liabilities. They will then need to establish whether what’s called a Grant of Probate is required. In order to deal with those assets. And a Grant of Probate is basically a Court Order and it’s where the Court recognises the validity of your Will and it recognises the appointment of the Executors in it. The reason for getting a Grant of Probate or needing a Grant of Probate it’s so that the outside world knows who has authority to deal with assets that are in your name.

Jo Middleton And do… when you’re thinking about your Will and planning. Do you need to know the exact value of your assets at that point or is it enough for you to kind of say my house or, you know, my yacht?

James Antoniou It’s not essential, unless you want advice about Inheritance Tax and you want an understanding of whether or not you’re going to suffer Inheritance Tax. What you need to bear in mind is that actually what you have now is somewhat irrelevant because it’s only actually what you have when you pass away that really matters. And we do commonly ask the question - well I don’t really have anything to leave why do I need a Will? And the answer is well actually because you don’t know what you’re going to have when you pass away. And people tend to forget that if their parents are still alive the chances are they’re going to receive an inheritance. They may play the lottery, you know, you never know what life has, you know, in store for you. So it’s all about planning, it’s all about planning for life’s unexpected events as well. And you can capture that all in a Will.

Jo Middleton If you thought you might be the beneficiary of a Will because I have this kind of idea like I might have like a long lost aunt that I’ve never met and she’s actually left me a £1,000,000 but I don’t know about it. Is there a way to find out if you were the beneficiary? If nobody’s told you or is it like a public document that you can go and search.

James Antoniou So there’s a couple of routes you have here. You can either contact the family and try and establish who is the Executor of the Estate if there is one. And if you find out there’s an Executor get in contact with them and simply ask them the question. In theory they should contact you or at least try and find you, as part of their administering the Estate. If however that’s not an option then what you can do is you can approach the Probate Registry and you can put in place what’s called a Standing Search. So that you would give the name of the deceased and the date of death and they would notify you if a Grant of Probate was produced for that Estate. And then that will give you the name of the Executors and you’ll also be able to see the terms of the Will as well.

Jo Middleton And when it… when you’ve actually kind of gone through the process of planning, you’ve put together your Will what’s then the next step in terms of the witnessing and the signatures? Because I think people imagine it’s quite a long process, but…

James Antoniou No it’s… it’s reasonably straight forward but there is a very strict process that has to be adhered to. In order to make sure your Will is put in place properly you need to be able to sign it, you need to sign it in the presence of two witnesses. Those witnesses should be over 18. They should be independent and they shouldn’t really be a relative and they shouldn’t… they should certainly not be a beneficiary named in the will.

Jo Middleton Right. And they have to be there together at the same time do they?

James Antoniou There are some… there are some rules around it but to keep things safe. Get two people in at the same time to err… They don’t need to read the terms of the Will. They don’t need to see the terms of the Will. They just need to be a witness to the fact that you’ve signed the Will.

Jo Middleton See you sign it yeah.

James Antoniou And they will leave their details because that’s the safest approach to take.

Jo Middleton Okay. And then… so once you’ve got it signed, it’s all finished what do you do with it then? I’m guessing you don’t like hide it in a drawer and lock it away and hide the key.

James Antoniou Some people do It may not be the best approach to take. What we would always recommend and what we do for our customers we offer a free Will storage service. So once you’ve signed the Will we would then basically store it somewhere that’s completely safe and then we would give you a photocopy of that signed Will for your records. And what we would also offer to do is, if you would like, we can give you further copies if you wanted to share it with your Executors or if you wanted to share it with your… with your children so they know what mum’s Will says and where it’s being stored.

Jo Middleton Okay that makes sense. So once you’ve made your Will how often do you recommend that people go back and review it and make changes?

James Antoniou I’d suggest that every three years as a general rule. But also earlier if you have one of life’s events occur. So if you are having a baby, if you’re getting married, if you’re buying a house, if you’re getting divorced, if you’re retiring those sorts of things should all be key triggers for you just to say actually I’m going to spend five or ten minutes just going through my Will. Just to make sure it’s all up-to-date.

Jo Middleton Mm, and should you expect to pay to make those changes?

James Antoniou Well if you are… obviously if you’re reviewing the Will yourself there’s no cost. But you can go back to.. to the organisation that wrote the Will. You can have an initial discussion because sometimes actually a change is not formally… it doesn’t formally need to be made. For example if you change address, you know, it’s not necessary absolutely that you have to change your Will. It doesn’t necessarily affect the validity of the Will. It could be something where we just update our records. Alternatively it may be something more fundamental than that and it will need an actual amendment to your Will. And it’s important to know that if you want to make amendments to your Will it needs to be done properly. You can’t just write over the top of your existing Will.

Jo Middleton Scribble it out.

James Antoniou Or start scribbling things out. Because again it goes back to, you know, creating a lot of problems after your death.

Jo Middleton So then do you need to have it re-signed by the two witnesses for any changes that you make?

James Antoniou Yes you would do. You’d need to re-execute it in the same way that you signed the first one.

Jo Middleton Okay. Can you tell me a bit more about Power of Attorney and what that means?

James Antoniou Yeah absolutely, I think you’re referring to Lasting Power of Attorney.

Jo Middleton Oh yeah, that’s the one.

James Antoniou Yeah and a Lasting Power of Attorney it’s a very important document and it’s where you legally appoint another person to have authority over your affairs. Okay and this is during your lifetime. So this is completely separate from writing your Will. And this is making sure that if you need to that there is somebody that you trust who has authority to deal with either your financial affairs and your property or alternatively your health and welfare decisions.

Jo Middleton Okay so they would be able to do things like if you had any kind of care costs or anything like that that you needed later in life that person would be able to come and take the money out of your Estate. That sort of thing.

James Antoniou Basic… basic… but that’s one example of what an Attorney would be able to do. We need to bear in mind that you may never lose your ability to make your own decisions. However through old age or through accident or through illness you may get to a stage in life where you’re unable to make those decisions. Now if you have a Lasting Power of Attorney in place you’ve got somebody that you trust appointed who can then make those decisions and carry out those actions on your behalf. The difficulty arises if you don’t have one. Because a lot of people just assume that oh my spouse will be able to deal with it or the kids will be able to deal with it. And not everyone recognises that actually that’s not the case. They do need to get an authority to deal with your assets. And it’s much more straightforward to put in place a Lasting Power of Attorney than the alternative which sees the person go back to Court and apply to become what’s called your Deputy. And that’s a much more convoluted process that’s best avoided.

Jo Middleton So is that the kind of thing that people should be always thinking of alongside a Will? Is it part of a Will or a separate process?

James Antoniou It’s completely separate. However a lot of people do put them in place at the time they write their Will.

Jo Middleton And how do you do it?

James Antoniou There are two types of LPA. One specifically deals with property and financial affairs. The other deals with health and welfare issues. So you… you’ve got sort of two options. You can do both. You can’t amalgamate them together. You would have to do two separate documents. You would need to decide who you want your Attorneys to be. It can be one person, it could be more. You can appoint replacement Attorneys as well. Much like… as much like the Executors that we spoke about… we spoke about earlier. You would need to decide whether they’re going to have full authority over your affairs or whether you want to restrict what they can do. Or you can add in conditions if you want to. You would need what’s called a Certificate Provider as well. Now a Certificate Provider is somebody that’s known you for a period of time or is professionally qualified to basically say that you understand the nature of the Power of Attorney and that you’re acting under your own free will. And they would be part of the process as well. You would need also, if you wanted to get it in place and have it activated, it would need to be registered with the Office of the Public Guardian. And there is a Court fee attached to that as well.

Jo Middleton There’s a lot to think about isn’t there?

James Antoniou It is quite involved but I can assure you that it’s a lot less involved then if you have to go down the alternative route of not having an LPA in place.

Jo Middleton Mm definitely. That’s the kind of thing though that I would not think about.

James Antoniou Absolutely and raising awareness of it is key because it’s such an important document and it really can have a significant impact on your loved ones if they do need to start making decisions. If you are going to require residential care, for example, having this put in place it just alleviates such a huge burden on them.

Jo Middleton So thinking about dying without a Will in place. If you happened to be living with a partner, you’re unmarried as is fairly typical nowadays. What’s the default position there? I guess a lot of people would just assume that their co-habiting partner would inherit.

James Antoniou And that’s one of the big myths I think. The notion of common law marriage it doesn’t actually exist. So if you are living together ever as, as a married couple but you’re not actually married or in a civil partnership then there is no automatic entitlement for that partner. Regardless of how long you’ve been together. Regardless of whether you have children together. Without a will in place there’s no automatic provision under the Intestacy Rules for the partner.

Jo Middleton So say you’d bought a house together on a 50/50 share potentially then that one partner left behind could be faced with having to sell the house and handover half of the money and..?

James Antoniou Potentially it depends on how you own the property. So there are two ways really you can own property. One is what’s called Joint Tenants and the other is called Tenants in Common. Most people own their property as Joint Tenants. That’s the more traditional way. And what that means is that if one of the… one of the parties dies the ownership of the property automatically passes to the survivor and doesn’t go in accordance with the will. It doesn’t go in accordance with the Terms of Intestacy Rules. The other way of owning it is what’s called Tenants in Common. And that’s where you each own a fixed percentage of the share of the property. So for example if you put in unequal amounts… you’ve contributed unequal amounts to the purchase of the property it’s more likely that it’s held as Tenants in Common. But it’s certainly an option that your conveyancing solicitor will give you.

Jo Middleton And I guess nowadays like you quite often have friends or siblings buying houses together. Who won’t want that to pass onto a friend.

James Antoniou Absolutely. So the difference between the two is really key. Because actually if you own it as Tenants in Common then your share of the property will pass in accordance with the terms of your Will.

Jo Middleton Well thank you James. That’s been really interesting to find out everything involved in making a Will and I shall definitely be getting home and getting mine witnessed and signed as soon as possible. So thank you very much.

James Antoniou Thank you.

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