In this episode, Aneesha Dhami discusses Wills. Aneesha explains why it is important to have a Will and what will happen to your estate if you die without having a Will in place.
She talks about how having a Will allows you to appoint guardians for your children and helps you make the most of any Inheritance Tax exemptions that may apply.
Aneesha discusses the downside of using DIY Wills or an unregulated Will writer. She also talks about the implications of getting a divorce and what impact this has on your Will.
Transcript
Paul
I’m Paul Harvey and welcome to the Warners Solicitors series of podcasts. I’m delighted to introduce Aneesha Dhami of Warners for this podcast, we will be discussing Wills. Now before we embark on the topic, can I ask you, Aneesha, what your role is with Warners?
Aneesha
Yes, of course, I’m a solicitor with Warners. I completed my training contract at the firm, and now I work in the private client team dealing with Wills, Lasting Powers of Attorney and probate.
Paul
OK, so let us get onto the topic of Wills. Aneesha, why should I make a Will?
Aneesha
There are a number of reasons for an individual to make a Will. Firstly, it’s really important that you ensure that your wishes are carried out as you would like. It also reduces stress for those left behind at what can already be quite a difficult time. In your Will, you can choose exactly how your assets and possessions should be dealt with in the event of your death. You can give specific gifts to your family, friends or even charities. If you don’t have a Will and you pass away without one, something called the intestacy rules apply. It can mean that your estate passes in a way that isn’t very efficient for Inheritance Tax. The other complication is that a surviving spouse might only receive part of an estate if there are children, which may lead to a forced sale of the family home. This can cause quite a lot of distress, as you could imagine, at a difficult time.
Paul
If you’re not married to your partner and you die without a Will, what happens to your assets?
Aneesha
If you’re not married and you are cohabiting, then your assets without a Will, unless they’re in your joint names, would pass to your family under the intestacy rules and not your partner. The only way that you can ensure that your partner would benefit in the event of your death is by including them in your Will.
Paul
If you have children who are minors, tell me more about appointing guardians.
Aneesha
That is another very important reason to have Wills made. In your Will, you can specify who you would want to act as a guardian for children who may be minors. If you and your spouse or their parent predecease, you can specify in a letter of wishes how you would like them to be brought up in that event. You can detail your wishes that you might not have had the opportunity to do so if you haven’t had a Will prepared.
Paul
If you’re a business owner when having a Will prepared, how opportune is it for tax planning?
Aneesha
It’s really important, especially if you’re a business owner, to meet with a solicitor to be able to take the relevant tax advice regarding business property relief and to structure your Will in a way that is beneficial to the business and to you so that there isn’t a complete mess when you pass away.
Paul
Can you tell us a little bit more about if you and your spouse sadly passed away, leaving no children or grandchildren? What can you choose with regards to the receiving of the estate?
Aneesha
If you pass away and you didn’t have a Will, and you didn’t have any children or grandchildren or next of kin. In that case, you could actually say that you would want the estate to pass to a charity instead. Otherwise, if you do have some distant relatives alive, the estate may pass to them. Then if you don’t have anybody alive, it would pass to the Crown, so you might prefer to actually say that you would rather it went to charity or a friend or somebody close to you that might not be family.
Paul
This is now all about what happens if I don’t have a Will. If you die without a legally valid Will, how does the law view that what’s the next stage?
Aneesha
If you pass away without a legally valid Will, then the law determines what happens to your estate, and it passes by the rules of intestacy. There is a tool on the government’s website to see how your estate would pass in that instance. You can go through it and see what would actually happen if you pass away without a Will. The other thing is that somebody would have to act as administrator of your estate and whereas in Wills, you would appoint an executor to deal with the administration of your estate. Having an administrator act might become a bit long and complicated because genealogists might be needed to determine the family tree and locate your beneficiaries. After all, we wouldn’t necessarily know who they are.
Paul
Have you ever been involved with going that route with genealogists involved?
Aneesha
We have had to instruct genealogists previously to locate one side of a family. The deceased’s family knew only about the maternal side. They didn’t know about the paternal side. We instructed a firm who produced a family tree that was about four A4 pages long. It was up on the wall in the office so that we could try to see where the estate was going, and then we had to make contact with all these people. As you can see, it becomes a lot more complicated and a much longer process which can actually increase the cost involved as well.
Paul
So, if you don’t have any surviving relatives and you pass away without a Will, tell me more about what happens then.
Aneesha
As we touched on, if you don’t have any surviving relatives and you pass away without a Will, then the estate passes to the Crown. That’s why making a Will is important because if you had made one, you would have maybe instead left it to charity or to friends. You would have specified where your estate would pass rather than just leaving it to the Crown.
Paul
So, here’s a question now that I suppose is a consideration for people. Can I prepare my own Will or use an off the shelf ready-made Will? which must be a temptation but tell us about the pitfalls.
Aneesha
If you prepare your own Will, there could be complications. It’s quite fraught with danger because there is language that you may use that could misinterpret your intentions that could accidentally be included. If the Will itself isn’t executed correctly, it could actually be completely invalid, or it could result in a partial intestacy. So, you may have thought that you’d left everything in order but then later on your family would find that actually it hadn’t been drafted correctly or it is invalid, which as you can see would cause lots of upset and distress at that time.
Solicitors belong to a regulated profession, and we have insurance to cover any possible mistakes that might happen, whereas non-solicitor Will writers are unregulated and sometimes unqualified too. At Warners, we use our specialist expertise and knowledge not only of the law of Wills but also the laws of property and trusts and tax. We prepare Wills that are tailor-made to your specific circumstances because no two sets of circumstances of the same.
Paul
OK, so I think the message here is DIY writing your own Will – don’t do it; I can understand that. Let’s talk now about the process of making a Will. Talk us through that, please.
Aneesha
Yes, so in non-COVID times we would usually meet face to face in the office and discuss your circumstances with you and take your instructions before preparing a draft Will for you and a letter explaining everything in detail for you to consider. Because of COVID at the moment, we have quite a lot of staff working from home. We can still take your instructions, but it would be over a video conferencing platform like Zoom or Microsoft Teams. If you have access to those and if you don’t, we may be able to still arrange a meeting in the office. Prior to the meeting, we ask you to complete a short questionnaire just so that you can get thinking about who you might want to appoint as your executors and who your beneficiaries should be. If you are appointing guardians who would you like to appoint and even what your funeral wishes are because you can specify those in your Will. So, once we’ve reviewed your Will questionnaire and we’ve discussed your instructions with you, then we can prepare drafts that are suited exactly to your circumstances. When you’ve approved them, we would meet to sign them and have them witnessed. If you can’t attend the office because of COVID, we would send your Will to you at home for your signature, but with signing instructions so that you know exactly how they should be executed.
Paul
So really, working remotely with clients is perfectly legitimate and very achievable. In fact, it saves the client coming in to see you. It can save them time and effort too, can’t it?
Aneesha
In some ways, I think we’ve found that it is more manageable than we had initially thought it would be. It’s because of technology now, and being able to see clients on Zoom or Teams it means that it’s almost like being face to face in the office. It can save them the difficulty of arranging a lift in or parking, so it’s worked out quite well. As long as we can assess capacity and make sure that there’s no undue influence, it works.
Paul
It’s pretty time-efficient, too, I would have thought. You can almost speed up the process, can’t you through the remote working?
Aneesha
Yes, we can. Rather than have the meeting to sign in the office, we can send your Will to you at home so that you can arrange witnessing it whenever it suits you best. Then you can ask whoever you would like to be the witness as long as they are aged over 18 and they are independent to the Will, so not a beneficiary or a spouse of a beneficiary.
Paul
How often should you review your Will. what do you recommend?
Aneesha
Every three to five years is a good guide because, of course, the law changes and your circumstances might do too. There may be new additions in the family, or you appointed executors while your children were still young, but now you want to appoint them. It would be sensible to keep an eye on it every three to five years and then just make sure that you’ve received all the up to date Inheritance Tax advice and see if there are any changes that need to be made.
Paul
You mentioned that appointing an executor. Can you describe what they do?
Aneesha
Executors are actually the people that you would appoint in a Will who deal with all the paperwork in the administration of your estate when you pass away. They are usually the trustees of any trust that arises under the Will, such as if money is left to minors while still underage. Executors are the people that are responsible for locating the paperwork to do with any assets and liabilities of yours. They apply for a grant of probate if it’s needed and submit the Inheritance Tax return. They can then distribute your estate in accordance with the Will. They don’t have to be solicitors. They can be anyone aged 18 or over, such as your spouse or your children or a close friend or relative. If they are struggling with the probate process or they would like some assistance, they can instruct a law firm to assist with the administration if they would like to.
Paul
And of course, Warners would be very happy to take up that role?
Aneesha
Yes, of course, so if you would prefer to have independent executors, then Warners can act as professional executors and trustees. It would be the partners at Warners who would act with perhaps the work being carried out by a more junior lawyer like myself to make sure that the costs are not overly high.
Paul
Thanks, that’s very clear. I made a Will previously but have recently got married. Do I need to make another Will?
Aneesha
Yes, so if you marry after making a Will, your Will is actually automatically revoked. It becomes invalid unless it includes a clause referring to your declared intention to marry the person you have married. If it has that clause in it and not too much time has passed, then your Will will still be valid. If it doesn’t, then it does get revoked by the marriage, so you should definitely come in and make new Wills and perhaps with your spouse so that you can plan together and have Wills made together.
Paul
So can we talk about separation without divorce and how that can affect the validation of a Will?
Aneesha
If you’re separated, but you haven’t got divorced, then your Will isn’t actually affected. It’s only divorce that means that any gifts to any ex-spouse or their appointment as the executor becomes invalid. If you are only separated, and you didn’t actually go through the divorce process, then an ex-partner might still benefit on your death. In that case, it’s really wise to review your Will because it won’t automatically exclude them. Then you would have to make some changes to your Will to re-direct your estate to new beneficiaries if you were leaving assets to them.
Paul
This must be a very heavily discussed area. There must be a lot of disputes that go backwards and forwards on this particular topic?
Aneesha
Yes, so if you don’t make the right sort of provision in your Will or it doesn’t follow your wishes exactly, then yes, it can become contentious. So, the best thing to do really is to make sure that you set it out as you would like.
Paul
Aneesha, say I’m in the process of looking at getting divorced. What is the implication of our relationship as joint tenants?
Aneesha
Our family team would definitely advise you at that time, as would we, that if you are in the process of getting divorced and you pass away before the divorce is finalised if you own your property as joint tenants, your property will pass automatically to the surviving spouse. That’s just how joint tenancy assets pass. If you never change it, the property will just pass over to the surviving owner, so when you start the divorce process, you might wish to sever the joint tenancy so that you own the property as tenants in common. Then you own your respective shares of the property so that you can leave them in your respective Wills. If your divorce isn’t finalised and you pass away, then under the rules of intestacy, if you don’t have a Will, then that tenants in common share could even pass to the surviving spouse, so you would want your Will to say where that share should go.
Paul
Right now, do I need to have a new Will prepared each time an executor beneficiary changes address?
Aneesha
You will be pleased to know that the answer is no. You don’t have to have a new Will prepared every time because obviously, addresses can change quite frequently for executors and beneficiaries. The best thing to do is just let us know so we can keep a note together with your Will and update our records accordingly because addresses are mainly used in Wills for reference purposes. If we do have to track down a beneficiary, it’s useful to have an idea of their previous addresses or their address so we can find them.
Paul
Well, it’s all very valuable advice, Aneesha thank you very much for that now. What is the best way for people to contact you if they want further information and advice from you?
Aneesha
My details are on the Warners website. If you would like to contact me directly, my direct dial is 01732 375368, and my email is [email protected].
Thank you very much indeed for this valuable information on this podcast. Thank you for listening to this Warner solicitors podcast.