Of course, few people will relish contemplating their own death, but then the thought of grieving relatives being left to deal with a minefield of legal and tax issues is hardly comforting either. Here's what you need to know before you put pen to paper:
Do I really need a will?
Yes. It is a common misconception that wills are for the rich, or those with complex financial arrangements. The reality is that anyone dying without having recorded a will is deemed to have died 'intestate', which will then require that their estate is dealt with according to a rigid set of Intestacy Laws. This can give rise to a whole host of problems for the grieving family.
For one thing, anyone dying intestate gives up the right to appoint someone they trust to oversee the 'execution' of the will (the executor). Instead an executor will be chosen on their behalf - not necessarily the person they would have chosen themselves.
Secondly, the law sets out exactly how the deceased's estate should be disbursed - with only the first £325,000 being tax-free. This often has disastrous consequences - there are plenty of examples of families having to leave the family home because they are faced with an enormous tax bill. For non-married cohabiters the issue is even worse, since there is no tax relief at all in this situation.
Can I write my own will?
Yes, there are plenty of DIY kits available, both online and in stationary stores. However, remember that a poorly drafted or incorrectly witnessed will cause more problems than it solves - solicitors make more money sorting out poorly drafted wills than they do from drafting them in the first place. DIY wills should be approached with caution - paying a solicitor may seem like a waste of money, but what price can you put on peace of mind?
How do I go about finding a solicitor and what would the cost be?
First of all, it's vital that you work with a solicitor you can trust. Ideally you should work with one you have used before, or who is recommended by friends and family. If that is not possible, you should contact The Law Society, which represents and regulates solicitors, or visit the Law Society website.
If you want to know what you have the right to expect from a solicitor, in terms of their treatment of you and the service they provide, take a look at the rules and principles of professional conduct for solicitors in the Solicitors' Code of Conduct 2007.
The cost of using a solicitor to prepare a will varies from firm to firm, but for a simple will you should expect to pay somewhere between £70 and £100. More complex wills obviously cost more to prepare.
Who should I choose as executor?
Being an executor is a complex and demanding role, often involving large sums of money. First and foremost, choose someone you trust absolutely, but it is also important to check that they are willing to take on the responsibility. It is also sensible to choose a substitute executor, especially if you name your partner as primary executor. This will ensure that you have a fall-back position, for instance if you and your partner were to die at the same time.
How do I protect my children?
If you have children under the age of 18, it is prudent to appoint a guardian to look after them after your death. If you fail to do so and are their last living parent, a guardian will be appointed by the courts. This is also an important issue for unmarried parents, since guardianship does not necessarily pass to the remaining parent automatically.
Should I set up a trust?
A trust is an arrangement that allows you to transfer your estate to someone you trust whilst you are still alive. They will then be charged with passing your estate on to your beneficiaries when you die. Using a trust ensures that your money and possessions do not go through the system of probate that governs the execution of a will.
Whether a trust is necessary or not depends on your circumstances, but trusts have been used for generations to protect assets and vulnerable beneficiaries (such as children). You will need to work with a solicitor to set up a trust, including the appointment of trustees to oversee and maintain your estate until it is passed on to your beneficiaries.
Remember also that establishing a trust can be extremely tax efficient, especially for married couples. Setting up a trust cold save your children up to £110,000 in inheritance tax.
It goes without saying that your trustees should be people that you trust to abide by your wishes and look after the interests of your beneficiaries.
Do I need to make specific legacies?
If you want to protect particular items, such as family heirlooms, it is worth considering treating them as specific legacies. That means naming them in your will and giving instructions as to who should take over their ownership once you die.
Should I leave a residual legacy?
Once any specific instructions to distribute your estate have been carries out, any remaining money or property is called your residual legacy. If you do not leave instructions as to how this should be disbursed, it will be deemed intestate and dealt with under the Intestacy Laws. It is vital that you make provision for residual legacy in your will.
Who can witness my will?
Obviously it is very important that you sign your will - otherwise it will be worthless in law. However, you will also need to have two independent people witness your signature and verify that you are 'of sound mind'. Remember that anyone likely to benefit from your will cannot be a witness to its signing.
What should I do with my will once it is written and signed?
First of all, don't hide it. If your will cannot be found after your death, you will be deemed to have died intestate, so the effort you put into drafting it will have been wasted. The best thing to do is to keep it in a safe storage facility, where it will be protected from fire, flood, damage or loss.
Your executors will be provided with certificates telling them where your will is stored and how to get hold of it after your death. For more information about safe storage, speak with your solicitor.