6 Common Myths About Making a Will

From the many meetings I have had with clients who are considering making Wills, I have found that a few misunderstandings or myths are quite common. While most people have some idea of what a Will does, it is usually not something they have much knowledge about, and what they do know may be incorrect. I will attempt to dispel some of these myths here.

Myth 1 “It’s a long and complicated process”

Some of my clients express fears that making a Will involves complex paperwork, a full review of their finances, and will take a long time to complete. Fortunately these fears are unfounded.

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Making a Will usually involves two relatively short meetings: one to discuss your needs and take instructions, and one to go through the final document and execute (sign) it properly. In between those two meetings there may be a telephone conversation or two, or perhaps an exchange of emails of letters, but it is actually a fairly simple process. If the client is in a hurry, a Will can be prepared quickly: a matter of a couple days or, if necessary, hours. Furthermore, it is not necessary for a client to get their entire affairs in order before making a Will. I understand that our lives are busy and complicated, and you may not have the latest details of all your assets at your fingertips. I will have a broad discussion with you about what your assets consist of, so that I can give you the right advice, but I would not expect you to produce evidence of your assets or a detailed breakdown of what you own.

Myth 2 “Making a Will with a solicitor is very expensive”

Some of my clients worry that seeing a solicitor will expose them to run-away, open-ended costs. This is a fairly common fear and is something we as a profession are constantly trying to address. Making a Will with Martin Shepherd involves a fixed, clear fee, agreed between the client and the solicitor before the client makes any commitment.

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Our standard fees for Wills are stated on our website, and there are no hidden extras. There may be times when a package price is agreed if the client wants more than one service at the same time, but other than that, the price listed is the price you pay.

Yes, there may be less costly ways of making a Will; some of my clients sheepishly admit to having made “DIY” Wills before coming to me. When you make a Will with a Martin Shepherd, you get the peace of mind knowing that you are dealing with a professional who specialises in making Wills, is insured in case anything goes wrong, and is able to give you advice tailored to your particular circumstances.

Myth 3: “Family members end up in court if you don’t make a Will” or
“You don’t have to make a Will, everything usually gets sorted out fairly anyway without one”

Most people know that they probably should make a Will, but are unclear about what happens if they do not. When someone dies without a Will, their estate (their assets) will be distributed according to a set of statutory intestacy rules. These rules list people (surviving spouses and blood relatives) in the order in which they are entitled to your assets when you die. The rules are fairly sensible, and in some situations could match up exactly with what you would have wanted anyway.

However, the intestacy rules have several major problems.

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First, the rules are the same for everybody, and therefore are not suitable for many family or personal circumstances. Just because the intestacy rules produced a sensible result for someone you know does not mean that your circumstances would fit as well within the rules.

Second, the rules can change. The rules are updated periodically, and while the changes tend to be sensible, they may not be in line with your wishes. For example, the intestacy rules used to divide a person’s assets between a surviving spouse and their surviving parents in some circumstances, and now the spouse would receive everything in the same situation. This may be in line with what you would want, but then again it may not.

Third, the intestacy rules do not adequately deal with children and young adults. The rules assume that a child is mature enough to receive their inheritance in full at age 18, regardless of their actual level of maturity.

Fourth, the rules have no capacity to protect particular assets for future generations. Many people feel strongly about wanting to pass on a legacy to their children and grandchildren, and want to take steps to ensure their assets will eventually reach the intended beneficiaries. There are many ways of doing this within a Will, but which are not a feature of the intestacy rules.

Fifth, the rules are open ended in that they do not specify particular individuals who can benefit, but rather classes of individuals. For example, the rules might list “surviving children” which will include children of all ages, including those from previous relationships or those who have become estranged, but will not include step-children, even if they have been treated in practice as a child of the person who has died. Again, for some people this may be fine, but for many others, complicated family arrangements mean that the rules might not benefit the people you want.

Myth 4: “You can leave instructions in a Will about what should happen if you are incapacitated”

It is important for people to understand that a Will only comes into force when someone dies. A Will cannot dictate what should happen during somebody’s lifetime. There are variety of other documents intended to deal with lifetime arrangements, such as Lasting Powers of Attorney, Advance Directives, and lifetime gifts.  Lasting Powers of Attorney (LPAs) can appoint a person (or more than one) to deal with your affairs (either your financial affairs or you health and welfare) during your lifetime if you no longer have mental capacity. LPAs are very useful, and I would urge people to consider putting them in place at the same time as a Will, but they are entirely separate documents.

Myth 5: “You can use a Will to force people to behave in a certain way after your death”

The question of what a Will can and cannot enforce is a complicated one. A Will does several things very well: dictating who gets what asset, the age at which they get the asset, and the circumstances under which they become entitled to an asset. A Will is less effective at controlling people’s behaviour, however.

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For example, a Will might legitimately read, “I give my Wedgwood china to John when he turns 25”. However, if the gift reads “I give my Wedgwood china to John when he turns 25, on the condition that he never votes for political party XYZ” there could be problems: who will verify if John is breaking the rule and how will they verify it? Will the restriction last forever? What if John sells the china to someone else before breaking the rule? Is it contrary to public policy to impose voting preferences on other people? This particular example would almost certainly not be enforceable. While this is a fairly extreme example, many people may wish to direct the behaviour of their beneficiaries in more subtle ways, such as dictating spending, investment, or marriage decisions. What a Will can and cannot do in this regard would depend on your particular wishes and circumstances, but there are limits, and we will be able to advise you of those.

Myth 6: “When does the reading of the Will take place?”

This question comes up fairly regularly, and shows a misunderstanding which can be largely blamed on Hollywood screenwriters who have created countless reading-of-the-Will scenes with a big “A-ha!” moments to increase dramatic tension. In real life, there is no formal meeting where all the beneficiaries get told what they are getting for the first time. As in many other areas, the true process is much less dramatic.

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When someone dies, their family, friends, or occasionally professional advisors either find the Will in the dead person’s papers or are aware that a Will exists (for example held with a bank or a firm of solicitors). Usually the people named as the executors in a Will already know they have been appointed to this role, and the executors will start to take steps such as obtaining a death certificate, making funeral arrangements, and informing family and friends about the death.  The executors’ primary role is to carry out the instructions in the Will. This means that at some stage the executors will contact each beneficiary to inform them of their entitlement under the Will, but this process has no set timeline or format. Yes, there are times when the contents of a Will may come as a surprise to beneficiaries; a Will is, after all, a private document during a person’s lifetime. However, there is certainly no requirement for a big, tense meeting of beneficiaries in a dark wood-panelled solicitor’s office, with ominous music playing in the background.

To Close

Making a Will remains a key task for anyone seeking to put their affairs in order in anticipation of their death but does not have to be complicated or expensive. A Will prepared by Martin Shepherd will be appropriate to your circumstances, not a theoretical formula or template. We will advise you on what your Will can and cannot do, and we will advise you about other steps you can take to put your affairs in order.

To find out more and to get in touch link to our page on wills & probate.

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