Will Writing Service

We hope that this guide helps to explain and identify the scope of the work that we will carry out as part of our standard Will Writing Service.

Please let us know if you would like our advice or assistance in relation to any matters that are outside of the scope of our standard Will Writing Service.  We’ll tell you about the cost of such additional work and obtain your approval to incur those costs before carrying it out.

1. Your Assets and Liabilities

We can only advise you based on the information that you supply to us. For us to prepare your Will you must provide us with details of the nature and extent of your assets and liabilities (including joint property).  It is your responsibility to ensure that this information is accurate and up to date.

2. Assets passing independently of your Will

Certain assets cannot pass under the terms of a Will, for example:

• An interest held jointly with another person as beneficial joint tenants passes by survivorship on the first death irrespective of what the Will says.
• The proceeds of a life assurance policy which, before death, have been assigned to, or written in trust for, another person.
• Death in service benefits payable at the discretion of the trustees of the scheme.
• Some pension death benefits.
• Property passing under the terms of a trust or settlement.

Our standard Will Writing Service does not include advice upon how such assets are currently held and how they will pass on your death nor the steps that can be taken during your lifetime to ensure that such assets pass in accordance with your wishes such as completing an Expression of Wishes/Nomination Form provided by the scheme administrator or the severance of a joint tenancy.

3. Businesses, Investments, Agricultural Property and Farming

If you own as business (including a farm) or have an interest in a business such as shares or investments or in agricultural property, there are some additional matters you should consider when writing your Will.

    3.1        Inheritance tax and business succession planning

When certain criteria are fulfilled, businesses and agricultural property can attract significant and unique inheritance tax reliefs known as business property relief and agricultural property relief.

Our Will Writing Service does not include specific advice upon inheritance tax and we cannot therefore advise you upon inheritance tax matters relating specifically to your business assets including whether your business assets qualify for relief, how the burden of debts and inheritance tax might affect the gifts in your Will and how the use of trusts and/or lifetime planning could be beneficial in dealing with your business assets under your Will.

We advise you to seek specific advice from us and would be happy to provide you with specific advice in this regard, for a further fee. If you are considering selling or retiring from business, it is especially important that you obtain specific advice upon the inheritance tax consequences of doing so before taking any action.

There are also wider considerations than inheritance tax to be had when a business forms part of your estate, especially if your intention is that the business should continue after your death.

Our standard Will Writing Service does not include advice on any of the following and if you have an interest in a business, we urge you to consider taking advice upon these matters from us or your other advisors if you already have them:

    a) Your business agreements and control of your business

You may already have a business agreement (such as a partnership agreement and or company memorandum) but if you don’t you may need one in order to ensure your wishes can be carried out and/or that there is continuity on your death. If you already have, it is important that you understand any restrictions it may contain which could affect how you deal with your interest in the business on your death and the powers that your intended beneficiary or beneficiaries would have or any restrictions that might be upon them too.

    b) Family businesses

Family businesses can present unique challenges in providing fairly for everyone you wish to benefit in your Will, with the assets you have available. If you have children or other family members who work in your business, they might expect to inherit it, but unless you have significant other assets you may not be able to benefit those who do not work in the business as you would wish. With advice we may be able to present options which enable fairness to be achieved.

   c) Debts, loans and mortgages

Whether there are debts, loans or mortgages against business assets either in your name or in the business’s name you should obtain specific advice upon how best to deal with these. There may be scope for saving inheritance tax if the debts are dealt with efficiently.

    3.2        The nature of your business interest

Our standard Will Writing Service does not include advising you upon the nature of your business interest and if you wish to proceed without advice from us or your own advisors you will need to identify the nature of your business interests and check whether any terms of your interest conflict with the terms of your Will. Different considerations will apply when disposing of your business in your Will depending upon the type of business in which you are involved.

    a) Sole traders

These are the simplest of businesses to dispose of within your Will. All assets owned in your name, whether relating to your business or not, can be disposed of in your Will. You will need to give thought to whom might continue to run your business in the event of your death or if the business would end on your death. If you intend to make a specific gift of your business to someone in order for them to continue the business, you will need to be clear what assets and liabilities should be transferred with the business.

    b) Partnerships

Most partnerships are underpinned by a formal partnership agreement. Partnership agreements will most often dictate what will happen to a partner’s share of the business in the event of their death. The terms of the partnership agreement will override any provisions in your Will. You should familiarise yourself with the terms of your partnership agreement and ensure that it does not conflict with the terms of your Will. If there is no partnership agreement in place at the date of the death of a partner, the partnership can be forced to cease trading and terminate.

   c) Limited companies

All limited companies will have both a memorandum and articles of association. These documents specify both the purpose of a company and how it is to be run. Like a partnership agreement, articles of association will often state what will happen to your share of the business in the event of your death. You should familiarise yourself with the terms of your articles of association and ensure that they do not conflict with the terms of your Will.

   d) Limited liability partnerships (LLPs)

All LLPs should have an LLP agreement or LLP members agreement. If you are a member of an LLP, you should familiarise yourself with the terms of your agreement. It will often provide for your surviving partners to buy your interest and your Will can refer to those provisions if it does. It is important that your agreement is checked to ensure its terms do not conflict with the terms of your Will.

   e) Shares and investment portfolios

A gift of shares in a business in which you are simply a shareholder rather than a participant in the business does not usually warrant specific tax considerations. However, if your shares are in a private limited company rather than a public traded company, you should check your company’s articles of association for any restrictions upon the sale or transfer of shares that conflict with the terms of your Will.

   f) Farm tenancies and their succession

If you are a farm tenant, it is important that you understand the terms of your farm tenancy and if there are rights of succession under it. Similarly, considerations would also need to be had if you are an agricultural landowner who has granted farm tenancies.

4. Foreign Assets

Your Will may not be effective to pass any property that you own which is situated outside of England and Wales. If you own property outside of England and Wales, we recommend that you seek appropriate advice from a lawyer who is qualified to advise on the rules of succession that apply to assets held in that jurisdiction and we can work collaboratively with them.

We may be able to help you to identify a suitable person to give this advice. You may also want us to provide them with a letter explaining that there is an existing Will which deals with your UK assets and that any foreign Will should be limited to foreign assets and should not include a general revocation clause.

Our standard Will Writing Service does not include our assistance with the matters set out above.

5. Inheritance Tax

It is possible that your estate will be subject to inheritance tax on your death. The amount of tax charged will depend on the value of your estate, the nature of the provisions of your Will and other circumstances including, but not limited to, certain gifts and transfers made by you during your lifetime and interests you have in trusts.

Our standard Will Writing Service does not include advice on how to mitigate or eliminate any potential inheritance tax liability via lifetime planning or specific inheritance tax advice. Timely tax advice can reap significant rewards when making plans to protect the financial security of your family.

6. Testamentary Capacity and the validity of your Will

To make a valid Will you must meet the requirements of the legal test for testamentary capacity in Banks v Goodfellow (1870). We will form our opinion of your testamentary capacity. In some circumstances we are required to suggest that, as a precaution, we should obtain a report from a medical practitioner or other relevant capacity specialist. Please note that if you do not consent to this examination, in the event of a subsequent challenge to the Will based on a lack of testamentary capacity, the lack of a contemporaneous medical opinion may make the challenge more likely to succeed. If we firmly believe that you do not have the capacity to make a valid Will, we may have to cease acting for you.

Our standard Will Writing Service does not include instructing a medical practitioner and liaising with them in relation to their report.

7. Claims against your Estate

The Inheritance (Provision for Family and Dependants) Act 1975 enables certain categories of persons to seek financial provision from your estate after your death. If an application is made under this Act it is likely to involve considerable expense for your estate and may alter the provisions of your Will if successful. If the information which you provide to us with for the purposes of preparing your Will suggests there is a real risk of such an application being made, we will draw this to your attention.

Our standard Will Writing Service does not include detailed advice in relation to the provisions of the Act nor how to mitigate the possibility of a claim arising or to reduce the chance of it being successful.

8. Writing your Will

When we have prepared your draft Will in accordance with your instructions, we will send it to you for your approval. It is important that you read all its provisions carefully together with any accompanying explanatory letter and commentary to make sure that you understand its contents and that it complies with your wishes.

The purpose of the draft Will is for you to check that we have carried out your instructions and that the Will accurately reflects your wishes. The draft Will is not a final document and we require your specific approval of its terms or details of any amendments before we prepare the final Will for you to sign and execute. It is important that draft documentation is reviewed by you as soon as possible as delays can result in it being overlooked and such delays can increase our overall fees which are payable irrespective of whether or not you complete and sign your Will.

9. Execution of the Will

When we receive confirmation from you that the draft Will accurately reflects your wishes, we will prepare the final bound version for you to sign. It is important that your Will is signed in accordance with the strict legal requirements otherwise your Will may be invalid.

We may be able to supervise the execution of your Will for an additional fee. If you wish to execute your Will without our supervision, detailed written instructions for its execution will be sent to you. We will inspect the original Will if it is returned to us for secure storage (or a copy of the signed Will if you are making your own arrangement for its secure storage). We can then check that the formalities appear to have been correctly complied with and that the witnesses do not appear to be beneficiaries or spouses of beneficiaries.

If we do not supervise the execution of your Will, we cannot accept any responsibility for a failure to properly execute the Will in compliance with the legal requirements.

10. Personal Assets Log

To facilitate the administration of your estate after your death, we advise you to complete and maintain a list of assets, including digital assets and online accounts and to consider how to ensure that those dealing with your estate will be able to access those assets and your digital records.

Our standard Will Writing Service does not include detailed advice in relation to the completion of such an inventory nor specific advice in relation to your digital asset or records such as information stored in a cloud account.

For more information, please refer to our Digital Asset Guide.

11. Need to review your Will

You should review your Will on a regular basis and always after there is a significant event such as a death, birth or decision to form or end a marriage or registered civil partnership.

Marriage or the formation of a civil partnership revokes a Will unless the Will is made in expectation of marriage to a specific person and includes a statement that it is not to be revoked by the marriage or civil partnership. The final decree of divorce can have significant consequences for any existing Will.  Other changes in your personal or financial circumstances or changes in legislation, decisions by the Courts/Tax tribunals and changes in HMRC policy may affect the appropriateness and effectiveness of your Will.

We do not accept any responsibility for notifying you in the future of any changes in the law or any legal decisions which may affect you.

We would be delighted to offer you advice in connection with any of the matters outside of the scope of our Will Writing Service. If that’s something you’d like, please let us know.

 

Contact Us