Live chat on writing a will 12 October 2011

Hello everyone – my name’s Sue Medder, and I’m a partner at Withers LLP. As Roberto mentioned above I’m here today to answer your questions on wills – thanks to all who’ve sent their questions through already.

‘Where do you start when writing a will? I haven’t thought about writing one yet but I have to admit I wouldn’t know where to begin!’

Hi James, the first thing to do is to make a list of your assets. Then consider who you would want to benefit from your estate and whether you have any obligations to anyone to make sure that they are provided for in the event of your death.

If you have young children you will also need to consider who should look after them in the event of both of their parents’ death.

You will also need to decide who should be the executors of your will namely the people who will administer the property on your behalf after your death.

This information will enable you to approach a solicitor to prepare a will for you or to complete a basic home made will.

If you do not instruct a solicitor care must be exercised in signing and witnessing the will and you will need to follow the instructions carefully to prevent the will being invalid. 

‘What are the differences in Scottish and English law when writing a will?’

Hi Ian, thanks for your question.

As a matter of English law, an individual has complete testamentary freedom and so is free to leave their assets in their will to whomever they choose.

Under Scottish law, my understanding (although I am not a Scottish lawyer)  is that the position is slightly different, in that the spouse and children of the testator have certain rights to claim a share of the individual’s moveable property (which includes money, shares etc but does not include buildings or land). If the deceased leaves children and a spouse, then the children are entitled to claim 1/3 of the moveables (though we understand this is scheduled to change next year) and the spouse is also entitled to claim 1/3 of the moveables, though this can impact on what is left them in the will itself if they make this claim.

If you are living in Scotland you should take advice from a Scottish lawyer when making your will so as to ensure that your family are provided for in the best and most appropriate way.

‘My mother died four years ago and the will has still not been enacted. How can you ensure if you have no relatives that your wishes will be carried out, and the lawyer won't just hold on to the money while he deals with it?’

Hello Niall, sorry to hear about your mother. The person appointed as an executor who may or may not be a lawyer is under an obligation to administer the estate within a reasonable period and to carry out your wishes as set out in your will. There is no definition of reasonable and the time to administer an estate will vary depending on the complexity of the assets and liabilities – the more complex the longer the administration (it should be noted that it can be quite an onerous task).

If there is delay which has not been explained by reference to difficulties with the administration ultimately the beneficiaries can make an application to the court and ask the court to order the executor to explain what he/she has been doing and the status of the estate administration. In extreme cases it may be necessary to remove the executor and appoint a substitute executor. These situations are rare and if beneficiaries have any concerns we would recommend they speak to the executor and then if necessary seek independent legal advice.

Thank you for sending in your question. 

‘At what age should you start thinking about writing a will? Or at what life stage?’

Hi Kelly, I would say that it is never too early to consider writing a will. The usual minimum age is 18. Many people will make their first will when they get married, when they start co-habiting with a partner or when they have children. All of these are key moments in a person’s life when it is a good idea to start thinking about what will happen when you die and to set this out in a will so that if the worst were to happen, at least you will have provided for your family or partner in the way that you wish rather than according to the intestacy rules, which have no flexibility and take no account of an individual’s wishes.

“I'm interested in writing a will but unsure how to explain it, I have no family as such, only my mum and two brothers, and share a mortgage on the house with one brother. but i have lots of animals that i want to make sure they are cared for after my death. Both my brothers have no family either, so if i leave things to them..when the last of us 4 dies where will the estate go?”

Dear Trudy,

There are a number of animal charities who will make arrangements for your animals to be cared for after your death. You might like to visit the websites of some of the major animal charities and see what they have on offer.

With respect to your will and given that you share the ownership of your house with your brother it would be a good idea to talk to your brother about what you would want to do with your respective share of the house if one of you were to die (this may depend on how you own your house namely as tenants in common or joint tenant - the solicitor who dealt with the purchase of your house will be able to give you this information).  It may be that you want to leave some money to god children or friends alternatively there may be one or more charities which you already support or would like to support in the event of your death. Once you have decided what you would like to do you should speak to a solicitor who will be able to prepare a will for you and your brother so as to ensure your wishes are put into effect.

Hope that helps.