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When you’ve worked so hard to build a legacy for you and your loved ones, it’s important to protect it – and them – at all costs. If you passed away without a will, or with an invalid one, your loved ones could be left without the inheritance they deserve, and this could invite a whole range of unjust claims for your estate.

Unless you’re a professional, you wouldn’t perform dentistry on yourself or your family. And you wouldn’t allow your home insurance to lapse, leaving your family exposed to huge losses. Having a solicitor draw up your will is just as sensible and obvious a life-choice to make, especially considering what’s at stake. And yet many of us put off this vital task, or entrust it to unregulated, uninsured and unqualified will-writing outfits.

We have looked at some of the most commonly asked questions on writing a will, but these are by no means exhaustive. If you have a specific question, or you’d like to speak personally to a professional about writing your will, give us a call and we’ll put you through to one of our expert wills solicitors – 01702 477106

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Why do I need a will?

Writing a will allows you to ensure that your assets are distributed and that your affairs are managed according to your wishes. As the person writing the will (the ‘testator’) you get to name people (the ‘beneficiaries’) that you would like to receive a share of your estate and also name ‘executors’, the individual or individuals that will administer your estate through the probate process. If you have any children under 18, you may also make guardianship arrangements.

Putting this information down in a legal document will help to prevent confusion for loved ones, and prevent your assets defaulting to the crown if no heir can be found (more on that later). Naming your executors also prevents the necessity for a state appointed Public Trustee to administer your estate. You can also use your will to specify and provide for your funeral arrangements, lifting the burden from those you leave behind.

What happens if there’s no will?

If you pass away without having made a will, you will be viewed to have died ‘intestate’. In this situation, the first £250,000 of your estate will pass to your spouse or civil partner if you have one, with the remaining assets, if there are any, divided among your offspring, even if they are still small children. If you have no civil partner or spouse your assets go to your offspring. If you have no offspring your estate will pass to a less proximate family member in this priority order: 

  • A direct descendant: grandchild, great grandchild etc.
  • A parent of the deceased
  • A sibling of the deceased
  • A half-sister or half-brother of the deceased
  • A grandparent of the deceased
  • A first cousin who shares 2 grandparents with the deceased
  • A half cousin who shares 1 grandparent with the deceased

In cases where no heir is identified, your estate passes to the Crown.

This arbitrary, default legal backstop will be the fate of your estate should you not set down your intentions in a well-written will.

At what age should I have a will?

Unless you are on active military service, the minimum age that you can make a will is 18. Beyond that, you can legally make a will at any age. Despite this, it’s something that many people put off, maybe because they feel that they are too young to have to worry about making a will, or possibly because it’s not the nicest thing to have to consider at any age.

Nevertheless, we advise addressing the issue sooner rather than later. Without getting too morbid, it’s an issue that none of us can avoid forever, as none of us know exactly when the deadline might be. It is especially important if you have dependent children to make provision for them in the event of something happening to you. This will ensure they are well provided for, and that they have the up-bringing that you have in mind for them.

No one deliberately lands their loved ones with a difficult and disadvantageous probate situation, and yet we see these unfortunate circumstances arise all the time, as people leave it too late to put their affairs in order.

What do I need to know when making a will?

Firstly, have a good idea of what you’d like your will to achieve. Distribution of your worldly goods is likely to be high on the agenda, so listing out significant possessions such as property, vehicles and high-value items is a good place to start, along with any financial and digital assets you hold. 

Next, these assets need to be allocated to recipients – the beneficiaries you wish to name in your will. Settling on an arrangement that you’re comfortable with prior to briefing your solicitor will save you time and money.

Along with the distribution of your assets, you may well have other wishes you’d like to specify with regards to the guardianship of children under the age of 18, the naming of trustees and executors, your funeral arrangements and more. Our specialist wills solicitors can help you to reach the right decisions and prepare a will that provides you with the certainty that those decisions will be discharged fully and in accordance with your wishes.

Do I need a solicitor to make a will?

No. But if we rephrase that question to something more like, “do you need a solicitor to write and securely store a legally-valid will that is robust enough to withstand legal challenges?” – then the answer is most certainly YES.

There are any number of reasons why a will prepared by a qualified solicitor will deliver superior results and give you genuine peace of mind. Here are some of the most notable benefits:

The signing of your will is recorded and documented.
In the event that the will is challenged, your wills solicitor produces this documentation as evidence. This is likely to prove decisive in court if, for example, a claimant alleges that you did not have the capacity to understand the will at the time of signature. A detail as simple as a documented and witnessed date for your will can make the difference when defending your will against a nuisance claim. 

Safe storage of the will is absolutely essential.
It is crucial to store this documentation in a place safe from moisture, fire, theft and pretty much any other threat you can imagine. Solicitors are registered with the Law Society so that if they go out of business – or even if they fail to open for one day without informing the Law Society – representatives will arrive at their offices to seize and protect their legal documents. This level of protection is vital for a document as important as your will.

As a Giles Wilson client, storing your will is FREE.
A will writing service is most likely to charge you to store your will, with a level of security that is likely substantially inferior to that of a solicitor’s vault.

“Will-writing” services are unregulated.
Legal activities are divided into “reserved activities” and “non-reserved activities”. Will-writing is a “non-reserved activity,” so pretty much anyone can set themselves up as a self-styled will expert without experience, qualifications or any industry regulation. This option is barely a step up from a DIY will and doesn’t come close to the service you could expect from an expert wills solicitor.

A “will-writing” service can shut up shop at any time.
So you make a will with a will-writing service, and they go out of business. What happens to your will? Where does it go? Who owns it? The answer is that nobody knows because, as previously stated, it’s an unregulated industry. Solicitors are registered with the Law Society, meaning that whatever the fate of the solicitor’s firm, your documents are protected in perpetuity.

It is frighteningly easy to invalidate your will.
One cause for wills to be declared invalid is if there is evidence that any content has been added or removed from the document post-signature. So, if your will is stapled to something: potentially invalid. If your will USED to be stapled to something and the staple has been removed: potentially invalid. Even if there is evidence that a paperclip has been used and then removed: potentially invalid. This is just one set of examples that illustrate how fragile the validity of your will can be, and how important it is that it is handled by qualified professionals at all times.

Complex cases require a trained eye.
There are also certain situations where it’s especially advisable to instruct a solicitor to write your will. Common examples include if your estate is likely to be subject to considerable inheritance tax, if you have children from a previous marriage, or if you own property abroad. In fact, we’d go as far as to say that a solicitor’s involvement is essential to avoid any mishaps in these circumstances.

Solicitors are regulated to meet a standard that includes the timely execution of their work.
This regulation is of particular importance when time is of the essence, such as drafting a will for an elderly or terminally ill person. If you were due to become a beneficiary but missed out because your wills solicitor neglected to finalise the will in a timely manner, you may be able to make a claim against that solicitor for your loss. These standards are in place to add an extra layer of security and protection over a will.

What happens to a will if the solicitor closes?

Solicitors are guided by the Law Society, who have very strict measures in place regarding the preservation of documents should a firm cease to practice. The Solicitors Regulation Authority will seize and secure any documents from the incumbent firm if measures haven’t been taken for them to be transferred to a suitable location, though typically arrangements will be made for the documents to be moved to the vault of an active firm. For example, Giles Wilson has held the records for Francis, Thatcher & Co since that firm’s closure.

How much does it cost to make a will?

As a “non-reserved activity”, will-writing can be undertaken by any provider at any price. The unregulated nature of this aspect of our industry means that there’s nothing to stop unqualified will-writers offering a cut-price service.

However, neglecting to use a legal professional means this could prove to be a false economy. Taking the cheaper option now could end up costing your loved ones a great deal more than you manage to save today. That’s because hiring a qualified solicitor to write your will offers a substantial level of protection against invalidation, loss and legal challenges down the line.

What is probate?

Probate is the legal right to represent a deceased person in respect of dealing with that person’s estate. The term ‘probate process’ tends also to refer to the process by which the executor identifies the testator’s assets, communicates with beneficiaries, processes inheritance tax payments, closes the deceased’s bank accounts, liquidates the deceased’s assets, prepares accounts, documents all transactions and transfers assets to beneficiaries.

What are the requirements for a will to be valid?

The legal requirements for a will to be valid are as follows:

  • The person making the will must be aged 18 or over (though there are exceptions for those on active duty in the armed forces)
  • The will must be undertaken voluntarily and without undue influence from anyone else
  • The person making the will must have the capacity to understand the document they are signing and be fully aware of the assets and people mentioned
  • The will must be a physical document, made in writing
  • The will must be signed by the testator in the presence of two witnesses
  • The will must be signed by the two witnesses, in the presence of the testator and other witnesses to affirm that they have witnessed the testator’s signature

These are the minimum legal requirements for the validity of a will. It’s important to note, though, that ‘valid’ and ‘unassailable in a court of law’ are two very different standards. For example, does a will need to be dated to be considered valid? Actually, no – but a reliably recorded and witnessed date can prove vital in defending your will in court.

Who can witness a will?

For a will to be valid, it has to exist in writing and be signed by the testator (the person making the will) in the presence of two or more witnesses. So what are the requirements and restrictions around who can witness a will? 

A witness must be:

  • Physically present. This may sound obvious, but in the digital age, it’s worth noting that no form of remote link or electronic signature is considered valid. A will must be signed in accordance with the formalities set out in Section 9 of the Wills Act 1837, which obviously predates digital technology.

Perhaps surprisingly, beyond this restriction, the regulations are relaxed as to who can sign.

However, remember that the purpose of witnessing the will is to help ensure the document can be defended against any legal challenge. When selecting witnesses, it’s important to choose disinterested parties, and parties whose capacities to understand the process and sign according to their own will cannot be called into question.

That means you would do well to avoid selecting anyone that:

  • Is under 18
  • Is blind or partially sighted
  • Has learning difficulties, is suffering from mental illness or whose capacity to understand the legal process is compromised
  • Lives abroad or who cannot be tracked down promptly and easily
  • Is unlikely to outlive you
  • Stands to benefit from the will (see below)

Can a beneficiary witness a will?

Strictly speaking, there’s no law against this, but a beneficiary (or his or her spouse) would make a poor choice because, though their signature would not invalidate the will, it does invalidate any gift in the will to themselves as beneficiary. So a beneficiary can sign as a witness, and the will remains valid, but any gift to them in the will would fail.

Can an executor witness a will?

Your chosen executor can be a witness to your will, but it’s not a good idea because, should the will be challenged, it could be argued in court that they are not a disinterested party, given that they stand to gain from the will.

Can I specifically ensure that one or more of my children do not inherit? Could they challenge the will after my death?

There is no reason why you can’t stipulate that any specific person be excluded as a beneficiary to your estate. However, should that person be a child of yours who is dependent on you for their financial wellbeing, or is in financial straits, they may choose to make a claim on your estate. There is a chance under these circumstances that the court will look favourably on them and go against your wishes.

How do I appoint executors?

Executors are the people you appoint to administer your affairs after you pass away. It’s a very responsible set of tasks and should not be bestowed lightly. Duties involve dealing with your estate, overseeing the payment of inheritance taxes, recording costs and transactions, communicating with beneficiaries and distributing your assets among them.

How many executors can I appoint?

You can appoint up to 4 executors. In fact, it’s a good idea to appoint multiple executors so that you can be reasonably assured that there’ll be someone still living and on hand to handle your estate. Only one of your named executors needs to carry out their appointed duties when it comes to administering your estate if the others choose not to (or are not able to) become involved. Alternatively, multiple executors can choose to act together.

Does my executor have to be someone I know personally? Can I appoint a professional instead?

Anyone over the age of 18 can be named as the executor of your will, and many people choose to name family members or friends. However, there are no restrictions placed on who you name. Clearly, it makes no sense to name a complete stranger, but there is much to be said for choosing a professional such as a wills solicitor or accountant who will have experience with the process of probate.

However, when naming a professional whose hours are billable, you will have to come to some sort of arrangement as to how they will be remunerated for their time. In cases where no executor is named, the government may appoint a ‘Public Trustee’ who acts on behalf of the deceased. Alternatively one of the beneficiaries may be entitled to become the Executor and this may not be someone that you would consider suitable.

Can friends or family charge for their work as executors?

There is no legal entitlement for executors to receive payment for their services, though they can claim back any expenses they incur directly as a result of carrying out their duties. The work involved as an executor can prove lengthy and arduous, involving administrative duties encompassing areas of law, finance and taxation. If you wish to avoid burdening friends or family with this responsibility, engaging a trusted professional can be a sound investment.

Do you need a solicitor to execute a will?

Can a solicitor be an executor of a will? Yes, they certainly can, but as ever when engaging a professional, their services are billable. Do you need your executor to be a solicitor? No - in fact it is common for testators to appoint family members or friends. Using a solicitor does have it’s benefits though. For example, if you appoint your acquaintances as executors and they fail to outlive you, responsibility may pass straight to the Public Trustee.

However, if your solicitor were to pass away, responsibility would pass to their firm or to another regulated firm of solicitors that has formally acquired that firm. And, of course, your solicitor has the knowledge and experience to carry out the duties of executor to a professional standard.

Can I make my own will? What can go wrong?

Some DIY projects are easier to get right than others. When we come to judge the results, sometimes they exceed expectations, sometimes they’re a downright disaster, but most of the time, there’s that nagging suspicion that a professional could have done a better job.

Unlike home improvements, the problem with writing a will yourself is that you won’t be around to judge the results of your work, and the implications of having made a mistake are far more serious than paint splattering on the skirting board!

Here, we discuss, how an invalid will may cause problems for your loved ones after you’ve passed, and why you should find a solicitor to write your will if you want peace of mind regarding the security of your assets.

What are the pitfalls of a DIY will?

Increasingly, we find that we are dealing with cases in connection with a challenge made to a will. A will can be defended as being the true last will and testament of the deceased if there is evidence to prove that the deceased (known as the Testator) was of sound mind, free from undue influence, and had no obligation to financially support the claimant after their death.

These are actually very difficult points to prove without impartial professional file notes to provide additional detail of the advice the Testator was given at the time they made their will – i.e. the documentation that comes with having had the will drawn up by a professional. It is this supporting evidence that helps to protect a professionally written will from any malicious challenges.

In the summer of 2017, a newspaper ran a headline that implied that soon it would be possible to make a will by sending a text message. This was misleading to say the least. Of course, there are ongoing consultations at the Law Commission to ensure that the law stays current and fit for purpose – and helping legal processes stay in-step with modern technology is high on the agenda for us all. Suffice to say, in a case where a will is being challenged, a simple text message promising to leave all one’s worldly goods to another could be problematic.

There is also the issue of fraud. There are many cases brought each year that dispute whether or not the deceased signed their own will. The primary piece of evidence the court will always refer to is the witnesses to the will. Was the will co-signed? What is the testimony of those co-signatories? Although this does refer back to a piece of Victorian law, it nevertheless represents a fundamental level of safeguarding that can only be removed if and when other measures have been put in place.

What happens if a DIY will is contested or invalid?

If a will is found to be invalid, the likely outcome is that the law will default to the position where the deceased died without having made a will at all. This could be precisely the opposite of what the person who made that homemade will really wanted.

A will drafted by a professional solicitor specialising in wills is usually presented in a good, bold typeface on quality paper and stored safely for you. These are really the niceties because it is possible for a valid will to be on a scrap of paper in handwriting, provided that it is correctly signed and witnessed. But why take the chance?

Making a will is paramount to protecting your assets and providing future security for your loved ones. Choosing a professionally prepared will means you can be assured that your wishes will be carried out to the letter. Sadly, going down the DIY route means you can never quite be sure that your family will inherit everything they are due.

Where should I store my will?

When you write a will, it can often be years – even decades – before it needs to be accessed, and if for any reason the original will cannot be found, it is sometimes presumed to have been destroyed. When this happens, it can be costly and time-consuming for loved ones to try to rectify the situation, causing them unnecessary stress. And of course, your wishes may not be carried out as you would have intended. Therefore, keeping your will in a safe place and informing your executor of its whereabouts is critical.

Where shouldn’t I store my will?

It can be tempting to keep your will in the safety deposit box of your bank. What could be more secure, than that? However, this may not be a good idea, as some banks don’t allow access to the box until the executor of the will is granted probate, and this can’t be granted without the will. You can’t get the will out of the box without already having the will out of the box – Catch 22! So, it’s important to ensure that the will is in a secure environment that does NOT require probate to be accessed.

In that case, maybe you should keep hold of the will yourself? While this can be a popular option, it’s also risky. The will could easily be lost, damaged or thrown away when clearing out papers. It’s also at risk from other household dangers such as fire or flooding. Or it could be destroyed by someone who does not like what it says. If you choose to keep possession of your will, you need to protect it against accidental damage, inform your executor of its specific whereabouts and make sure that it’s not moved from this location. Though despite your best efforts, factors beyond your control may still compromise your will if it is not professionally stored.

So, where exactly does that leave your will? Well, you could lodge it with the Probate Service (England and Wales), who will store it for you at a flat fee. However, if you decide you want to review your will and make changes you – and only you – have to make an ‘official request’ to retrieve it. You couldn’t, for example, ask your solicitor or a loved one to get it for you.

A safe place for wills at Giles Wilson

It’s widely regarded that the best option is to leave your will with a solicitor. When you choose to leave your will with Giles Wilson, all of your details and data will be locked away as they would be in a high street bank, but they are accessible by our solicitors should you choose to make changes or when your executor requires probate (the right to begin carrying out the administration, taxation and distribution of your estate in accordance with your will). When you instruct one of our professionals at Giles Wilson to write your will, we will store it at our ideally equipped HQ on London Road in Leigh-on-Sea.

Built during the 1930s, the Giles Wilson building is a former Barclays Bank and was chosen for its exceptional storage capabilities. The ground floor of our office includes a lead-lined vault, complete with the bank’s original security door. Though its days storing money have long since passed, it now holds arguably more value in the form of our clients’ legal documentation, including wills and powers of attorney.

Furthermore, since aiding in the closure of legal firm Francis, Thatcher & Co. and handling the archiving of their clients’ wills and legal documentation, we have opened up our 2nd vault in the building’s basement. The total number of wills entrusted to our care is now in excess of 4,500.

To add a further level of security to our clients’ wills, we have recently devised and implemented a CRM system to make use of advances in technology. Every will in our care is scanned into our cloud-based security system so that copies are readily available in the event of disaster. This system also allows us to establish quickly whether we hold the will of someone and the date of the will. It’s still important that the original is stored safely however, as it is this physical document that must be produced to the probate registry when making an application for probate.

If you would like a more secure place to store your will, or if you find that your current wills solicitor is closing its doors and the home of your will is called into question, you can arrange to collect your will from its existing location and store it at Giles Wilson’s secure facility free of charge. We also offer a professional will review service to ensure that everything is up to date and as it should be.

I’ve made a will, what next?

Having a will written and stored professionally is the best first step you can make when arranging your affairs, but you may find that further steps are necessary to ensure that your will remains aligned with your wishes as circumstances change over time, and that it can be located and actioned in a timely manner when the time comes.

When do I need to update my will?

Time can bring many changes with regards to your circumstances, the circumstances of your beneficiaries, your sentiments regarding the distribution of assets or your wishes surrounding your funeral arrangements. If changes do occur, it’s time to update your will accordingly. That way, you enable your will to remain relevant, appropriate and in line with your current wishes. If you contact your solicitor, he or she will be able to take you through the process of dissolving your existing will and replacing it, or adding a codicil to your existing will.

Will my current will become invalid if I get divorced?

Your will does not become invalid when you get divorced, but any provision that you’ve made for your former spouse will cease to apply. So, if you wish for your ex to remain as one of your beneficiaries, you would need to amend your will accordingly.

What happens to my will if I leave something to someone and they die before I do?

If a beneficiary dies before the testator, that inheritance is said to have ‘lapsed’. The assets intended for that beneficiary then become part of the ‘residue’ of the estate, and if no provision is made for that residue, the assets pass to the crown in accordance with intestacy procedure.

If, as testator, you become aware of the death of one of your beneficiaries, obviously it makes sense to amend your will in order to redistribute the assets that you intended to leave to them.

Does a will need to be registered?

There is a National Will Register for England and Wales that is endorsed by the Law Society, but it is not a legal requirement for a will to be entered onto this register for it to be considered valid. The register offers a degree of security and makes it easier for the will to be located via a search of the registry. There is a charge for registering and for conducting searches, though, so you may consider it unnecessary – especially if your will has been drawn up and stored with a solicitor’s firm.

How do I ensure someone else’s will is carried out?

When someone you know passes away, you may need to find out certain information about any arrangements they may have made. Did they make a will? Where is it stored? Can I read the will myself? Can I challenge the will? Here is some useful advice for if you find yourself facing these sensitive questions.

How do I find out if someone has left a will?

Once a Grant of Probate has been issued, the will becomes a public document. Gov.uk offers an online search for the will or probate of any person in the UK who died in or after 1996. With the name and year of death of the deceased, you can search for any records and, if you find the individual in question, the results will show the probate number and what documentation is held. For a fee of £10, you can access the documentation within 10 working days. Giles Wilson’s specialist solicitors can offer guidance though the process of obtaining the will and interpreting its contents.

How do I find the will of a deceased person?

If someone you know has passed away without sharing the whereabouts of their will, a search of their home and possessions is a sensible place to start, as most wills are kept at home.

If the will isn’t there, then try to identify the deceased’s solicitor and enquire with them, as the will may well be stored in their vault.

Beyond this you can try the District Probate Registry or Gov.uk, as mentioned above, to discover if the will is a public document.

Can I get a copy of a will?

Only the testator may grant you permission to procure a copy, but after the testator has passed away, responsibility passes to their executors. Once the executors have acquired a Grant of Probate however, the will becomes a public record and can be obtained within 10 working days from Gov.uk for an admin fee of £10.

Are beneficiaries entitled to a copy of the will?

It is up to the testator, and after their death the executors, as to whether you may access the will. However once the testator is deceased, the executor is obliged to inform the beneficiary of the death, the fact that they themselves have been appointed executor, and details of the inheritance due to the beneficiary. Once the will has become a public document, of course, beneficiaries have the same rights as anyone else to access it.

Can I dispute a will?

There are circumstances where a will can be disputed. For more information, please see our page about disputing a will.

Speak to Specialist Solicitors in Wills, Trusts & Probate

Hopefully, this page will have answered some of your questions surrounding the difficult area of wills & probate. The more knowledge you can gather the better as you go about making your arrangements.

Confusion and ambiguity surrounding your last wishes is the last thing you want to leave behind for loved ones in the difficult days after you’ve gone. Giles Wilson’s experienced solicitors can help you put together a plan that provides for your family and makes your wishes clear.

Our wills, trusts & probate solicitors consult with you to ensure your specific and unique requirements are well served by the documents we draw up and store on your behalf.  For true peace of mind that you have made the best provision for your loved ones, regardless of what the future holds, the right legal guidance is essential.

If you’re ready to start thinking about your will, begin by speaking to a solicitor today on 01702 477106. Alternatively, if you’d like to arrange a consultation in person, visit one of our offices to discuss will writing in Leigh-on-Sea or Rochford.

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Awards & Recognitions

The expertise of our solicitors is regularly recognised by some of the profession’s most distinguished organisations. As well as being a member of a number of Law Society schemes, we have won awards at the Law Society Excellence Awards, the Halsbury Legal Awards and the Modern Law Awards. We have also received recognition in the form of the Lexcel mark of quality, a Legal 500 listing and a place on the shortlist of The Lawyer’s Boutique Firm of the Year.

Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson
Awards and Recognitions of Giles Wilson