Own a business? Here's why you should use a solicitor to write your will.
The news today (21 August 2018) reported that Richard Cousins, head of catering company Compass, left £41m to Oxfam. On New Year's Eve 2017, Cousins died in a plane crash with both his sons.
Rachel Saunders, partner and private client solicitor at Forrester Sylvester Mackett, explains how this tragedy demonstrates the importance of using a solicitor to draw up your will, especially with business assets to consider.
Mr Cousins had recently inserted a 'common tragedy clause' into his will, which meant that in the event of his inheritors dying with him, he chose for the majority of his fortune to go to charity. Although it may be difficult to think about such an occurrence, having a will in place is necessary if you want the final say in what happens to your business and other assets.
Many of the clients I see know what they want to put in their will. They want everything to pass to a spouse or in due course, the children. But when I ask (the unpleasant question) what happens if there is a family tragedy and none of you survive? I am often met with blank stares. Solicitors are trained to think what if? and we do our best to make a will that covers all situations.
But could you cover all eventualities yourself?
You only have to google 'writing a will' to be bombarded with a plethora of bargain DIY kits, will writers, and Mumsnet threads explaining how to write your own will on the back of a napkin. But is it really that easy? Is it worth bothering to pay a solicitor a couple of hundred pounds to draw up a will when you can buy a will kit for £19.99 at WHSmith, or better still write your own at home for nothing.
Common mistakes of the DIY will
Surely I can just write a will myself, stating that the business goes to my wife and children, and get the neighbours to sign it?
Well, technically yes. But it is not always that straight-forward.
Signing and witnessing
Many people who write their own will either forget to sign and date it, or don't have it correctly witnessed. Common mistakes include signing in the wrong place, not signing at all, not having the correct number of witnesses or witnesses signing incorrectly. A witness cannot in any way benefit from the will. This means that if you had a family member sign it, they have effectively written themselves out of the will.
Disposing of the whole estate
Listing all of your worldly possessions is impossible and very time consuming. Many DIY wills fail to cover all of the assets in the estate. It is common for people to list their house, bank account and car but forget to mention the life insurance or other household possessions. When this happens you end up with a 'partial-intestacy', meaning some of the assets are dealt with by the will, and others using the rules of intestacy. It may be the case that people end up inheriting when you did not want them to. A good solicitor will be aware of this and will know how to carefully draft your will to cover everything in your estate.
The laws around inheritance tax, executors and trusts can be complicated. It is not as easy as stating that your children should inherit all of your money. If you die when they are very young you need to think about who is going to manage this money and look after them. Recent changes to the tax rules mean that stating an age at which your grandchildren benefit (i.e. 21 or 25) can have adverse tax consequences. A good solicitor should be familiar with these laws and can help you make the best choices.
It is important to consider what would happen to your business. Your shares or interest in a business become an asset of your estate. In some cases a partnership agreement or company papers might say what will happen after you die, especially if the business is owned by more than one person and it is expected that the business will continue after your death. But unless you make a will detailing who will receive your share, those assets may pass under the rules of intestacy. Some business assets may be eligible for inheritance tax relief. Taking advice on how you give business assets could significantly reduce your estate's liability to inheritance tax, or avoid it completely.
Will writers – a cheaper alternative?
Will writing is unregulated work. This means that you do not require any legal training or qualifications to call yourself a 'will writer'. The opposite is true of a solicitor. Solicitors are heavily regulated and usually have undergone years of training. Solicitors also hold professional indemnity insurance. That means if something goes wrong, YOU are covered.
It is also worth shopping around. Will writers are not always cheaper than a solicitor. They will sometimes charge extras such as annual storage charges and fees for removing your will from their care. Don't assume that a solicitor will be more expensive.
Save your loved ones the headache
Paying a solicitor to properly draft a will is more likely to ensure the best outcome after you die. It is especially important that you have a will made by a professional if you own overseas assets, a business or have complicated family circumstances. This is particularly the case if you are in a couple but not married. In these cases, the rules of intestacy may result in your partner being left with nothing.
Almost 40 percent of people in Wiltshire in a recent study admitted to not having put a will in place at all. Don't put it off any longer. The cost of making a will properly through a qualified solicitor is far less than the potential emotional and financial cost to your loved ones of fixing mistakes once you are gone.