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Choosing someone to write your will

To write an efficient will you need the advice that only a person who is up to date with the relevant legislation and tax law can give you. ‘Off-the-shelf’ forms are available, but mistakes can be made in filling them in, or important details missed out, and this can cause problems for your beneficiaries after your death. 

The possibilities include specialist wills and legacies advisers who work for charities and solicitors who specialise in wills and probate. The Law Society can provide you with a list of solicitors in your area (see Useful contacts)

Whoever you employ to write your will, ask them 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, etc.You may also want to leave a list of people or organisations that your executors will need to contact when you die: for example, your bank, solicitor, and so on.

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.

A person 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 on behalf of a testator who is not mentally capable of doing so themselves.

It therefore makes sense for people to deal with the possibility of future incapacity while they are still able to do so.

Currently, these situations are dealt with by signing an lasting power of attorney (LPA). This is a simple document which can either be made effective immediately, or at such time as the donor becomes mentally incapable of looking after their own affairs.

EPAs were superseded in October 2007 by lasting powers of
attorney (LPAs).There are two versions of these: those relating
to property and financial matters, and those relating to personal
care and welfare matters.Any EPAs that were made before
October 2007 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 have the official information on 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 (see contact details
on page 30).

The Mental Capacity Act 2005 (effective from April 2007) governs decision-making on behalf of adults who lack mental capacity, both where they lose capacity at some point in their lives and where the incapacitating condition has been present since birth.

It covers all decisions, including personal welfare and financial matters, and covers 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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