Reflections on the regulation of Will Writing in England and Wales

If you have been following the news over the last couple of years, you may be aware that there has been a debate about whether the will writing industry should be regulated, how this regulation would look and whether solicitors actually offer a better service than other will writers.

The process received attention after the BBC’s Panorama programme investigated some of the rogue practitioners operating within the industry. The programme was a welcome reminder that your last will and testament is an important legal document that should be drafted by someone you trust.

Deciding who you can trust can, of course, be a challenge. It can be particularly challenging if you are browsing online. That’s why, at makeawillonline.co.uk, we carry £1,000,000 professional liability insurance and are registered with the ICO (Information Commissioner’s Office) as Data Controllers. The insurance means that, in the very unlikely event that something should go wrong (in all the years we have been operating, this has never happened with one of our wills), you are covered. The data handling registration ensures that your private information stays private.

The Panorama programme highlighted a number of cases of unethical practice, for example where initial will-writing fees of £75-£100 escalated to thousands of pounds. In some cases, customers were unaware that the will writers were also selling estate administration services and naming themselves as executors. When private companies manage probate (distributing the estate), they often charge a percentage of the total estate as a fee. Across the industry, the mean cost of estate administration is £1,700 while 18% of work costs over £3,000.

At makeawillonline.co.uk, we DO NOT manage probate and DO NOT recommend any individual or service for this responsibility. Our role is to provide quality wills for an affordable price.

In the aftermath of the programme, the government asked The Legal Services Board (LSB) to investigate the will writing industry and to come up with suggestions for how will writing could be improved. At the start of 2013, the LSB presented its findings to the Lord Chancellor, who has the final say on matters of regulation.

The Lord Chancellor declined to make any changes to the existing system. As before, you do not need to visit a solicitor to write your will. As before, the responsibility remains with you to find the right service.

At makeawillonline.co.uk, we welcome this decision, with reservations.

The government is in the process of liberalising large parts of the legal services industry, making activities that were once restricted to solicitors available to a far wider range of legal services firms (including supermarkets). In this environment, it would have been strange of the Lord Chancellor to restrict a successful and diverse industry like ours, which more closely resembles the legal services marketplace the government wants to achieve. However, leaving the industry unregulated provides opportunities for unethical behaviour by rogue operators. The emphasis remains on you, the consumer, to find a service you trust.

We would welcome any regulation that ensures consumers are protected from rogue traders and, in the mean time, will continue to work hard providing a quality, fully legal service for the right price.

Wills and Probate Glossary

There are a number of words and phrases that you will often come across in the area of wills and probate. This article takes you through some of the most important ones.

Beneficiary:

Someone who receives anything from your will

Codicil:

A change to an existing will is made through adding a codicil.

Crown or Treasury:

The government. If you leave no surviving family and no instructions to the contrary, they get everything.

Estate:

Your possessions at the time of your death (less any outstanding debts).

Executors:

Less sinister than they sound! Executors are the people you choose to carry out your instructions.

Guardian:

A person with legal control or responsibility for a minor (i.e. a child under 18). You can designate Guardians in your will.

Inheritance Tax:

40% tax payable on all estates over a certain value (£325,000 in 2009-10). This can catch homeowners out, especially in and around London.

Intestate:

If you die without making a will, you are said to die ‘intestate’

Minor:

Anyone under the age of 18 (in English law)

Legacy:

A gift in a will. This can be a specified item (a Specific Legacy) or a gift of money (a Pecuniary Legacy)

Probate:

Grant of probate establishes that your executor(s) are legally authorised to manage and distribute your estate.

Residue or Residuary Estate:

What’s left of your estate after all specific gifts and expenses have been paid out

Residuary Beneficiary:

Someone who receives the residue of an estate, or part of it

Sound Mind:

To be ‘of sound mind’ means that the mind is reasonable and comes to a judgment upon ordinary subjects, like other rational men.

Testator:

Someone who makes a Will

Testatrix:

A female testator

Trust:

A trust is an arrangement under which a trustee or trustees hold and manage property for the benefit of another person or persons (the trust beneficiary or beneficiaries)

Trustee:

A person responsible for administering a trust.

Will:

A legal document which establishes the wishes of someone upon their death. Used to say who gets what from someone’s estate. Writing a will ensures that your possessions are distributed according to your wishes in the event of your death.

Witness:

A witness confirms that they saw the testator (or testatrix) sign the document and that he/she was of sound mind at the time of signing. To be legally valid, a will must have two witnesses.

I am about to get married, should I make a will?

You should make a will… but only once the ring is on your finger! This is because marriage automatically cancels any last will and testament unless that document specifies otherwise. Most wills do not specify otherwise.

This means that you will become intestate upon marriage and your estate will be divided according to the intestacy laws as administered by HMCS. The person with the first claim upon your property will be your new spouse or civil partner, followed by any biological or legally adopted children you have. The circumstances where this can present problems include a remarriage in later life, where you may want your possessions to go mainly to any biological children from an earlier marriage as opposed to your new spouse.

Whatever your marital circumstances, the only way to ensure that your possessions are divided according to your wishes in the event of your death is to have a valid last will and testament in place.

On makeawillonline.co.uk you can make a pair of wills for less than forty pounds: perfect for newlyweds who want peace of mind. Bear in mind that you should make a new will if you have children.

Are makeawillonline.co.uk’s wills valid in Scotland?

Our wills are only valid in England and Wales as they conform to English and Welsh law. They are not valid in Scotland. This is because there are a number of differences between probate law north and south of the border. For example, the idea of “moveable” estate, which includes and property that is not land or buildings, is important in Scottish probate law. The intestacy rules are also significantly different to those in England and Wales, giving family members specific rights.

If you have assets in, or live in, Scotland, we recommend that you visit a solicitor familiar with Scottish wills and probate law.

Leaving internet logins with your will

One thing you may want to consider when storing your will is the option of leaving your login details for online accounts in an informal letter that accompanies the will. It can be a messy and prolonged process for your family to gain access to any online accounts you hold, for example anything stored “in the cloud” such as emails and google docs, and social media sites.

If you don’t leave the login details, your family will have to contact the companies directly and many of them are not based in the UK, thus further complicating and delaying the process.

Some examples of websites where the logins can prove important are email accounts, gambling websites, music websites, stores where you have credit and any online services which you subscribe to.

However, leaving the login details as part of your will can cause problems. This is because your will is often effectively put into the public domain after your death, making your logins available to anyone who cares to enquire. For that reason, the logical thing to do is to store an informal letter containing the login information and passwords alongside your will, thus making them easy for your executors to find and act upon.

More than half of UK adults don’t have a will

Unsurprising news from this year’s Standard Life Wills and Trusts Research Report – only 37% of UK adults have a last will and testament. This sinks to around 10% of people aged 35 to 44 and well below ten percent of people under 35. This means that the majority of UK adults will have no say at all in how their possessions are divided in the event of their death.

The widely-respected survey was carried out by YouGov and polled a sample of 2051 adults aged 18 and over from a range of social backgrounds.

Encouragingly, 83% of people who had a last will and testament in place have reviewed it within the last ten years.

The most common reason for not having a will is that the respondent “hasn’t gotten round to it yet” (31%), whereas the second most common responses were a lack of assets and the respondents considering themselves too young (17% each).

Dying without a valid last will and testament makes a hard time even harder for those closest to you. It slows everything down, from the granting of probate to the distribution of your assets. If you have children, the situation is complicated further as guardianship issues can arise if there is no surviving parent or legal guardian.

With makeawillonline.co.uk you can make a fully legal will at your convenience for a fraction of the price of visiting a solicitor. All wills are checked by our expert team for your peace of mind. So if you are one of the 31% of UK adults who simply haven’t got round to making a will, there has never been a better time than right now.

What should I do once I have finished my will?

At the end of the will writing process, after you make a secure payment via debit/credit card or PayPal, your will document is emailed to the email address you provided at the start of the will writing process. Along with the document, you will find comprehensive instructions for signing, witnessing and storing your will.

The first thing to do is to look through the will and ensure that it represents your wishes, that all names and addresses are correctly filled in and that any amounts entered are correct. If you have not already informed those who you wish to act as executors or guardians, you could take this opportunity to do so (although we would recommend asking them before writing the will as both roles entail a great deal of responsibility).

The next step is to staple the will together and sign it in the presence of two witnesses. This is the step that makes your new will legal. The witnesses must not be beneficiaries of the will or legal partners of your beneficiaries. It is also important to chose witnesses who could testify in court that they saw you sign the document, in the case that the will is challenged after your death.

Once the document is signed and witnessed it is a legal last will and testament. But this means nothing if nobody can find it! Many banks and solicitors offer storage services. But wherever you store your will, the most important thing is to let your loved ones know where it is, otherwise it is useless. One option is The Principal Registry of the Family Division (PRFD), which is free and popular. Do not store your will in a safety deposit box as Probate can’t be granted without the original will and the box can’t be opened until Probate is granted!

If you make any changes to the will once it has been signed and witnessed, you will need to sign the changes and have that signature witnessed. There is more information about this in the instruction document that we send out with the will. In many circumstances it is easier to simply make a new will.

Does a married couple need two wills?

In almost all circumstances, a married couple should have two separate wills. There is the option of a “joint will” but in practise these are very rare and are treated as two separate wills by the courts anyway; the will is submitted for probate when the first testator dies and then again for each other testator.

With a pair of wills, each individual can specify how they want their possessions to be divided, which offers much more flexibility than a joint will.

A change in your marital status is an important point at which to write or update your will, as getting married automatically revokes any existing will, unless that document specifically states otherwise. This means that you will be left intestate and, in the event of your death, your estate would be distributed according to the laws of intestacy. Be sure to make the will after you get married and not before, otherwise it will be invalidated.

It is also very important to update your last will and testament if you separate from a spouse or civil partner. Under current laws, if you are in the process of getting divorced, your spouse remains first to inherit under the laws of intestacy until the decree absolute is issued. If you have a will in place, your spouse remains entitled to the share specified in the will until the point at which the decree absolute is issued, after which they are treated as if they died on the day at which that decree was issued.

The only way to ensure your possessions go to those who matter to you is to have a valid last will and testament in place. Make a will now.