June 2020
Will Power, The Most Important Document You Will Ever Produce
During Lockdown A Will Is The Most Important Document You’ll Ever Create
Alex Truesdale, Willwriter, explains how to make one of the most important documents you’ll ever produce, during lockdown
Celebrating the tenth anniversary of her Willwriting, probate and estate planning business was supposed to be a far more social occasion for Alex Truesdale, Cobham-based City solicitor turned Willwriter. “I was going to sponsor a race at Sandown Park…” she muses, “but coronavirus has rather put paid to that for now. It’ll just have to be autumn jump racing rather than summer flat racing!” Coronavirus has impacted every aspect of our lives. However Alex, who has advised over 750 clients since she established her practice in 2010 after 15 years at a top City law firm, sees lockdown as the opportunity for us all to take back some measure of control by addressing our financial house-keeping tasks. “Many of us have a bit more time on our hands, so why not use it to speak to our loved ones about our wishes, and sort out our Wills, Lasting Powers of Attorney and tax planning.”
During lockdown, Alex has been offering her clients support, reassurance and complimentary file reviews via Zoom, WhatsApp and Skype. Although the Law Society and the Institute of Professional Willwriters have both lobbied the government to relax the strict statutory requirements for a Will to be validly executed, Alex has concluded that this would require primary legislation and is unlikely to happen in the short to medium term. Instead, Alex provides socially distanced witnessing and document execution in a number of ways: ‘drive- through’, ‘drive-by’ and ‘remotely supervised DIY’. “For clients whose medical status requires them to be shielded, I can even sign Wills on their behalf and at their direction under carefully controlled circumstances. And for clients taking out Lasting Powers of Attorney, we are offering complimentary General Powers of Attorney and Advance Decisions to bridge the gap between making the LPAs and getting them back from the court duly registered. With the right risk management, nothing is insurmountable.”
Increasingly, parents or grandparents are choosing to assist their child or grandchild with the purchase of property, but do not have the protection of being named on the legal title to the property.
If the contribution is a loan or investment and not a gift, this should be recorded in writing, especially in the case of family loans.
A Declaration of Trust is essential here:
- A gift to a child may not be intended as a gift to the child’s partner as the other joint owner. If the relationship breaks down, the child’s share can be protected by a Declaration of Trust.
- A gift by a parent can be beneficial for inheritance tax purposes. The Declaration of Trust records and clarifies the gift which avoids future issues within the family and HMRC. If a parent making a lifetime gift wants to ensure all their children are treated equally, but cannot make the same lifetime gift to all, this should then be reflected in an appropriately drafted Will, usually involving a discretionary Will trust.
- Without a Declaration of Trust, there is more chance of costly and time-consuming disputes about the division of proceeds when a property is sold or the relationship breaks down.
Do's and Don'ts
DO: get physical control over your papers – executors need to know where your original Will is, and how to access it
DO: ensure your ‘key personnel’ (executors, trustees, guardians and attorneys) are briefed – avoid nasty surprises such as family disputes that they may have to referee. Letters of wishes are easily updatable and can provide invaluable guidance. Lists of assets provide a starting point for the valuation of your estate
DO: think about sitting down with your family and explaining your wishes – bring in your Willwriter to chair a meeting if necessary
DO: check how real property is owned, especially if you have moved house since making your Wills; Wills involving trusts often depend on real property being owned as ‘tenants in common’ for those Will trusts to operate
DO: consider updating your Will – for homeowners with children, tax legislation changed in 2016 meaning an additional £350,000 per couple can now pass tax free if your Wills are structured correctly
Don’ts
DON’T: make a DIY Will – they’re often overly simplistic, don’t cater for more complex family situations (for example, second marriages) and leave too much room for error in their execution – if their attestation clauses are valid at all
DON’T: rely on beneficiaries ‘doing the right thing’ with an inheritance – financial, marital and health situations can intervene to frustrate the orderly passing on of wealth, particularly from a surviving spouse to the next generation
DON’T: choose your Willwriter based on price alone: look for membership of a reputable professional organisation such the Institute of Professional Willwriters: www.ipw.org. uk, find out who will be drafting your Will (not just taking your instructions), look for references or testimonials, get a quote that reflects the type of Will which is right for you and beware bait-and-switch schemes and lifetime updating offers
DON’T: put the process off, fearing that making a Will accelerates your mortality – it doesn’t! A properly drafted Will protects your spouse, your wider family, and your legacy
This article was featured in The Elmbridge and Kingston and The Richmond and Barnes Magazines in June 2020
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