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Choosing someone to write your will

To write an efficient will you need professional advice from someone who is up to date with the relevant legislation and tax law. ‘Off-the-shelf’ forms are available, but it is easy to make mistakes when filling them in, or miss out important details, and this can cause problems for your beneficiaries after your death. 

You may wish to speak to specialist wills and legacies advisers who work for charities, or solicitors who specialise in wills and probate. The Law Society can provide you with a list of solicitors in your area (see Useful contacts)

Ask whoever you employ to write your will, to send you a copy of their public liability insurance certificate and, if it is a solicitor, their fees sheet, so you know what you will be paying.

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Wish lists and contact details

It is a good idea to create a wish list, separate from your will,
giving those closest to you instructions about, for example, the
type of funeral you would like and where it is to be held, what
you would like to happen to your body, whether you want
flowers or donations to a charity. You may also want to leave a list of people or organisations that your executors will need to contact when you die, such as your bank and solicitor.

These wishes may also be in your will, but often people find it
easier to keep them separate.The reason for this is that if you
change your mind about these wishes you can simply update the wish list, rather than having your will rewritten.

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Mental incapacity

Sadly, some people become incapable of looking after their own affairs and someone, normally their next of kin, has to take over their finances and look after them, or arrange for their care.

Someone who is already mentally incapable cannot personally make or change a will. However, a statutory will can be drafted by the Office of the Public Guardian (OPG) on behalf of a testator who is not mentally capable of doing so themselves.

It therefore makes sense to think about the possibility of future incapacity now.

Currently, these situations are dealt with by signing a lasting power of attorney (LPA). This is a simple document which can either come into effect immediately, or at whatever point in the future when the donor could no longer look after their own affairs.

Enduring powers of attorney (EPAs) were replaced in October 2007 by LPAs.There are two versions of these: those relating to property and financial matters, and those relating to personal care and welfare matters. If you made an EPA before
October 2007 it will remain valid.

Although an EPA or an LPA is not part of a will, it is a natural
supplement to it. It can be arranged by the person drawing
up your will, who will also know about the duties of attorneys, what an EPA or an LPA is, and the procedure for registering it. This information comes from the OPG, from which you can obtain the necessary forms.

The Mental Capacity Act 2005 governs decision-making on behalf of adults who lack mental capacity, both where they lose capacity at some point in their lives and where they were born with an incapacitating condition.

It covers all decisions, including personal welfare and financial matters, and includes decision-making on their behalf by attorneys, or court-appointed ‘deputies’. It also clarifies the position if a formal process has not been adopted.

Major changes in the roles and responsibilities of the Court of
Protection and the Office of the Public Guardian have come
about in the course of the replacement of EPAs by LPAs.

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Living wills and advance directives

A living will is used for telling relatives and doctors the extent of the treatment you want if you become ill and whether you want to be kept alive if you have an incurable illness or are not expected to recover from an injury. You can express your wishes in your will or write a specific ‘living will’.

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Storing your will

Your will can be stored with your solicitor (who will usually
store it free of charge), or for a fee you can store it at the
Principal Probate Registry, at a will storage facility, or at your
bank.

It can take a while to get access to a will stored at a bank,
unless the executor has made face-to-face contact with the
bank in advance. However, it is safer than keeping the original
will yourself because it should not be stolen, lost or destroyed, or read by anyone other than those who you want to see it.

If you do decide to keep the original will yourself, remember
to tell someone you trust where you have put it, so it can be
found when you die.This is very important, because if the original, signed will is not found, your estate would normally be treated as if you had died intestate and your assets might not be distributed as you would have wished.The Probate Registry will normally not accept a photocopy of a will.

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