Wills & Probate: Doing it yourself
Are DIY Wills and Probate a Good Idea?
DIY Wills and Probate have gained in popularity over the last few years. Interestingly though, we have seen a marked increase in contentious Wills and Probate matters.
Are the two linked? It is highly likely.
Increases in house prices, especially in the South of England has resulted in many people leaving estates of unexpectedly high value. Couple this with the rise in second and even third marriages, often involving children from each, and you have the potential for complexity and perhaps a bitter family dispute if a DIY Will or Probate procedure is relied on without any professional advice being taken.
Wills do not have to be complicated. “Vse zene” meaning “All to wife” in the Czech, was the shortest valid will in the world. It was written and dated 19th January 1967 by Herr Karl Tausch of Langen, Hessen, West Germany.
However, Wills that seem short and straightforward at the outset can often drain the Estate of hundreds of not thousands of pounds because they are not clear. For example, an often cited badly written will is the 1906 one that read “All to Mother” and ended up as a court case (Thorn v Dickens). It was contested because the testator called not only his mother by that title but also his wife – as the mother of his children.
It was unclear which woman he meant by “Mother” but the court decided he did mean his wife and awarded his estate to her. Had he instructed a solicitor to draft his Will, they would have written his wife’s name, thereby avoiding any confusion.
The legal requirements of a Will are that it must be:
- In writing; and
- Signed in the presence of two witnesses – who sign and date the Will also;
- Made by a person who is sound of mind and free from duress.
So in theory, you could scribble your Will down on the back of a receipt and as long as it was signed and witnessed, it could be considered legally valid.
Most DIY Will kits are purchased off the shelf, some for as little as £20. A person completes the forms, signs it and arranges witnesses themselves. They may seem uncomplicated but this is an illusion. As a firm which has been doing business for over 100 years, we have never encountered a DIY Will that did not require our probate team to sort out serious and costly problems associated with it.
Before considering a DIY Will ask yourself: do I want to reduce my inheritance tax bill? Or leave the family business to my children? How should I manage my property abroad? These are just some of the circumstances where it is crucial to receive experienced legal advice to ensure that you and your loved one’s interests are protected after your death.
It is also highly recommended that you seek legal advice if you have children from a former relationship or you and your partner are not married or in a Civil Union. In the latter situation, if your DIY Will is declared void, the laws of intestacy may prevent your partner from inheriting anything under your estate, even if you have been together for decades.
One thing people often underestimate with DIY Probate is the amount of work involved. Handling Probate as an executor entails valuing the estate in question, applying for a grant of Probate, and undertaking the administration of the estate – where assets are gathered in, then distributed to the beneficiaries. All these stages take time and involve a significant amount of paperwork. Tackling the job yourself may save a little money, but do you have the time and patience to deal with a process that can be notoriously slow and frustrating?
It is important to bear in mind that if you manage Probate yourself, you will be financially responsible to the Estate for any errors you make. HMRC has also chosen to take an increasingly hard line against errors in forms which cover inheritance tax. If you make a mistake, the penalties can be harsh.
Finally, consider the relationship you have with the beneficiaries. The closer you are to them the more likely arguments and ill-feelings can develop if questions are asked as to why the process takes so long (even simple Probates take months to sort out) or they criticise you if you make a mistake due to your lack of knowledge.
There are more than three of course, especially in cases involving high-net-worth estates, but here are the main benefits everyone who instructs a qualified solicitor to draft their Will should receive:
- Speed – experienced private client solicitors draft Wills regularly and have advised all types of people with different circumstances on the best way to structure their document. If you have a step-family, multiple properties, off-shore interests or a business, a qualified solicitor can have your affairs in order swiftly and effectively.
- Extra support – it is very rare that a solicitor will not undertake additional work for an Estate and often they will complete actions that a lay person would not know to think of. For example, when one half of a couple passes away, a solicitor will organist the documents needed for the transfer of the inheritance tax nil rate band so when the other spouse dies the executors don’t have to start finding marriage certificates etc.
- Additional advice – an experienced solicitor will ask a number of questions about your situation and help you work out how to structure your affairs as a whole. For example, you may wish to arrange your finances so you can mitigate possible care home fees. Or put your family business or property into a trust. A solicitor will also advise you on creating a Lasting Power of Attorney, to ensure someone can make decisions about health and finances on your behalf, should you become mentally incapacitated.
DIY Wills and Probate may sound attractive on paper, but in reality, often the amount of money you save is negligible compared to the time and stress involved.
And that is if things go smoothly, which they seldom, if ever, do.
If a DIY Will is deemed invalid, loved ones may miss out on their rightful inheritance. In the case of DIY Probate, an oversight could result in hefty financial penalties and personal relationships ruined forever.
Is it worth the risk?