In theory, drafting your own will using an off-the-shelf template, purchased online or from good stationers, can be a quick and easy way of leaving instructions on how you want your assets to be distributed after your death. Nonetheless, a will is a legal document and if it has been incorrectly worded and / or witnessed it may be invalid, meaning your estate would pass in accordance with the rules of intestacy (government provisions setting out how an estate should be divided if there is no will). In addition, a poorly drafted will, even if not invalid, may well be contested by disappointed relatives after your death (and the number of inheritance disputes in the High Court has increased dramatically over recent years).
Who bears responsibility for a poorly drafted will?
It is advisable to have your will drafted by a lawyer, not only will this minimise the risk of error and ensure that your wishes will be carried out after your death but using a solicitor will also give you peace of mind as we are a regulated profession. This means that you are protected by the Solicitors Regulation Authority and the Legal Ombudsman in the unlikely event that the will contains errors. A company providing an off-the-shelf template would bear no responsibility if you completed it incorrectly, and the same applies to an unregulated will writer, of which there are many.
The law around wills, inheritance, tax and trusts can be complex and a solicitor can help you make informed decisions relevant to your individual circumstances. For example, we could discuss particular issues which would be difficult to deal with correctly in a homemade will, examples include:
- Inheritance tax planning;
- Protecting assets and the use of trusts. For example, a trust can provide for your partner after your death while protecting assets for your children if your partner remarried;
- If you live abroad or own any foreign property;
- Transfer of any business assets.
It is very common for those making a will to ask a responsible relative or friend to act as the executor of their will when they die. More often than not, people accept the request without really knowing what is involved in administering an estate nor the duties and legal responsibilities (and liabilities) it entails.
As an executor, you are personally responsible and liable for the correct administration, reporting and distribution of the estate once you have begun to act and this, for the non-professional, can be very time-consuming and made all the more difficult if, for example, if there are errors with the will, it is disputed, or if there was no will at all. Sometimes, an estate worth millions can be easier to deal with than one worth considerably less but, regardless of complexity, it is important that you administer the estate correctly to avoid any difficulties with beneficiaries or HMRC regarding tax owed. This is why using a professional can help to relieve the pressure on you and to resolve difficult issues such as foreign assets or significant taxes to pay.
Administering an estate is an onerous business due to the number of forms that have to be completed and the amount of cross-referencing that is required. The more complex the estate, the more onerous the administration, making it very easy for an executor, unfamiliar with the system, to overlook a potential relief, or reliefs, or worse, missing something that might be material as far as HMRC is concerned when assessing liability for IHT. Although it is not a requirement to seek professional advice when administering an estate, it is worth considering to give you peace of mind that you have executed your responsibilities correctly. You can find a list of executor’s responsibilities on our website.
In the meantime, please do not hesitate to contact a member of our private client team who will be delighted to help you.