Nobody likes to ponder their own mortality, but preparing for the future by making a Will is one of the most responsible decisions you can make. It’s not just about assuring your assets are distributed according to your wishes; it’s about providing clarity and peace of mind for your loved ones during what will undoubtedly be a difficult time for them. Despite this, a staggering number of adults in England and Wales do not have a Will, often leaving their estate and their cherished ones in a precarious position.
Why it’s important to make a Will
A well-crafted Will is the cornerstone of effective estate planning. It allows you to have the final say on who inherits your assets, from property and money to sentimental items. Importantly, it can also dictate who becomes the guardian of your minor children, ensuring their care is entrusted to the person you believe is best suited for this vital role.
One of the least understood consequences of not having a Will concerns the laws of intestacy. These dictate how your estate is divided if you die ‘intestate’ or without a Will. While these laws serve as a default arrangement, they often do not reflect modern family structures or individual wishes. For example, unmarried partners are not recognised under intestacy rules, which can result in significant hardship for the surviving partner.
Further, without explicit instructions from you, it becomes difficult to ascertain what your intentions would have been, which can leave your estate open to legal challenge. Some individuals who feel they have not been adequately provided for may be able to contest your estate under the Inheritance (Provision for Family and Dependants) Act 1975, leading to potentially lengthy, expensive and distressing disputes.
The options for making a Will
Ensuring your final wishes are respected means considering how to put together a will that is both valid and reflective of your intentions. In this guide, I look at the advantages and drawbacks of various approaches to Will writing.
1) Free Will templates
When it comes to drafting a will, one of the first options that may come to mind is the use of free Will templates. These are documents readily available online, offering a simple and accessible way for individuals to outline their wishes without initial costs. But while free Will templates appear to offer a quick fix, their suitability and effectiveness vary greatly depending on individual circumstances.
Pros of free Will templates:
Accessibility: One of the main advantages of free Will templates is their accessibility. With just a few clicks, anyone can download a template and begin the process of creating a Will. This opens up the option of Will-writing to more people, potentially reducing the number of individuals who pass away intestate.
Cost: There’s no charge for those free Will templates that are really free, making them an attractive option for those on a tight budget or those who cannot immediately afford the fees of a solicitor.
Speed: If you’re pressed for time, perhaps due to an impending trip or surgery, free Will templates allow you to quickly get your wishes down on paper. For those who have straightforward assets and wishes, this can ensure some level of preparation is in place.
Cons of free Will templates:
They’re often not free: Most of the top hits on Google for ‘free Will templates’ describe their documents as free but then charge you, often through a ‘free trial subscription’ which proves difficult or impossible to cancel. There are also plenty that sell your personal data to funeral homes and insurance companies, who will spam you until the end of time.
Generic nature: The one-size-fits-all approach of most free templates might not be suitable for those with more complex estates or family situations. They often lack the nuances necessary to deal with specific circumstances that a professional might be able to address.
Risk of errors: Without legal guidance, it’s easy to make mistakes. Even small errors or omissions in a will can make it invalid or lead to disputes among beneficiaries, which can be costly and time-consuming to resolve.
Legal complexity: Various legal formalities are required to make a Will valid, including witnessing and signing the document in a particular way. Free templates may not provide comprehensive guidance on fulfilling these legal requirements correctly, leaving the door open to potential challenges.
2) Paid Will templates
For those desiring a balance between affordability and reliability, paid Will templates could be an appealing compromise. Like their free counterparts, these templates are often readily accessible, found at various outlets such as post offices and stationery shops like WHSmith. Despite the small cost, they can offer a more structured approach to documenting your last testament.
Pros of paid Will templates:
Semi-Customised: Compared to free online resources, paid templates sometimes come with more detailed instructions and options, allowing for a somewhat more personalised document. They can cater to a broader range of scenarios and provide step-by-step guidance on how to reflect your circumstances.
Regularly updated: Legal templates sold by reputable vendors are kept up-to-date with ongoing legal changes, ensuring compliance with current laws. This level of maintenance can provide reassurance that the document you’re using as a basis for your Will is following the latest legislative framework.
Solicitor-drafted: Sometimes paid Will templates are created, or at least reviewed, by qualified legal professionals. This can improve the chances that the layout and language used are appropriate for a binding legal document.
Cost-effective: Although paid Will templates require an outlay, they are generally much cheaper than employing a solicitor to draft your Will from scratch. For many, this strikes a desirable balance between cost-saving and obtaining a more reliable product.
Cons of paid Will templates:
One-size-fits-many: While paid templates may include more options, they still can’t cater to every unique situation. If your estate involves complex assets, multiple beneficiaries, or cross-border implications, these templates might falter in adequately addressing these complexities.
Potential for mistakes: The mere presence of more detailed instructions doesn’t negate the possibility of errors. Misinterpretation of legal terms or incorrect data entry can still render a Will invalid or problematic, and there’s less recourse if things go wrong compared to using a solicitor.
Lack of legal support: Although these templates might be drafted by solicitors, they don’t come with the ongoing support that a law firm provides. You won’t have the option to ask questions or seek clarification on elements you’re unsure about, which could result in critical oversights.
3) Online Wills
The advent of the digital age has revolutionised many aspects of our lives – and the domain of Will-writing is no exception. Online Wills have become increasingly popular, offering a blend of convenience and cost-effectiveness. Such services typically employ interactive ‘wizards’ which guide users through a series of questions, and based on the responses, create a Will tailored to the individual’s circumstances. Despite the apparent ease, the diversity and quality of these online services can differ significantly.
Pros of online Wills:
Convenience: Perhaps the most apparent advantage is the convenience of completing your Will online, at your pace, and often from the comfort of your own home. The process is typically straightforward and can be addressed at any time that suits you.
Affordability: Online Will services are generally less expensive than hiring a solicitor, making them an attractive option for people with a tight budget who still seek a certain level of reliability in the will-drafting process.
Legal oversight: Some online Will services offer products that have been drafted or reviewed by solicitors, ensuring a degree of legal robustness. Aside from solicitors, Wills drafted or approved by experts such as STEP-qualified professionals or Chartered Legal Executives specialising in private client work are also desirable. This is a significant step up from self-drafted or purely templated wills, and having a solicitor-vetted Will can provide added reassurance.
Additional assistance: Some platforms go the extra mile and offer additional services such as solicitor checks, where for a further fee, a solicitor will review your completed will to ensure it is comprehensive and error-free.
Cons of Online Wills:
Variability in quality: Since Wills and estate planning is not a ‘reserved field’, you don’t have to be a solicitor (or STEP-qualified professional/Fellow of CILEX) to draft a Will. Consequently, the quality of online Will services can vary drastically. It’s crucial to research and confirm that the service is indeed solicitor-vetted and not just ‘lawyer-drafted’, wherein the latter term may refer to someone with legal experience but not necessarily a qualified practitioner.
Subscription services: A notable pitfall with some online Will services is the potential for them to be subscription-based, like that offered by Law Depot. After utilising what may be marketed as a ‘free trial’, users can find themselves locked into ongoing payments, which is unnecessary for a document that shouldn’t require frequent payments. If considering such a service, it would be wiser to look for an option where you can pay a one-off fee for your Will.
4) Bespoke solicitor-made Wills
When deliberating on how to best secure your legacy, the traditional path of engaging a solicitor (or STEP-qualified professional/Fellow of CILEX) to draft your Will is hard to overlook. This route is synonymous with personalised advice, expertise, and the assurance that your Will is as watertight as possible. But as with all things, this gold standard option comes with its own set of pros and cons.
Pros of solicitor-made Wills:
Expertise and personalisation: Solicitors bring to the table their professional legal expertise, ensuring your Will is an exact match for your circumstances. With their experience, they can navigate complex family dynamics, various asset types, and intricate legal jargon, something less guaranteed with online services or off-the-shelf templates.
Tax advantages: A seasoned solicitor is likely to be well-versed in current tax laws. They can offer strategic advice on how to structure your Will in a way that minimises future inheritance tax liabilities, potentially saving your beneficiaries a substantial amount of money.
Trust formation: Want to protect your assets from care home fees or ensure that your estate is passed directly to your children, even if your surviving spouse remarries? Solicitors can assist in setting up trusts within your Will, offering a level of protection against such scenarios.
Comprehensive service: Solicitors typically offer a complete end-to-end service. From the initial consultation to signing and storing the final document, they can handle every aspect of creating a Will. This includes ensuring your Will is correctly witnessed and advising on Executor appointments.
Cons of Solicitor-made Wills:
Cost: The level of experience and professionalism comes at a price. Solicitor-drafted wills can be significantly more expensive than other options discussed earlier, making them less accessible for those on a tight budget.
Convenience: Engaging a solicitor usually means either visiting their office or arranging a home visit. In a world accustomed to digital convenience, this may feel cumbersome or intimidating to some. However, many solicitors are adapting and now offer virtual consultations to meet the needs of their clients more flexibly.
In summary, the solicitor-drafted route remains the ultimate choice for many seeking peace of mind when planning their estate. The personal touch, expert advice, and the tailor-made nature of the service are unparalleled benefits. Whilst there might be a higher cost involved and a potentially less convenient process compared to online solutions, the investment can provide immeasurable reassurance that your final wishes will be honoured precisely as you intended. The knowledge that your loved ones will be cared for, without the worry of legal complexities or unexpected tax bills, is often worth the premium for a solicitor’s expertise.
Complex situations: a word of warning
When considering drafting your will, it is crucial to understand that while there are a variety of methods available, some situations unequivocally warrant the specialised services of a solicitor/Fellow or full STEP member. It is not advisable to rely on template or online Wills in cases where your wishes do not follow the ‘norm’, such as the decision to exclude a close family member (such as a child, whatever their age) from your estate. I would also recommend consulting a professional where avoiding care fees is one of your main concerns. Such delicate circumstances require the finesse and legal protection only a fully qualified professional can provide.
If there’s any risk that your Will could be contested or if your situation involves complex family arrangements, for example, estranged children or previous marriages, relying on a generic template or an online service is not recommended. A solicitor can offer bespoke advice and draft a Will that considers all potential challenges while ensuring your wishes are clear and legally sound. They will also maintain detailed notes throughout the drafting process which record your decisions and the reasons behind them. If your Will is disputed, these notes can be an essential part of the evidence needed to uphold your wishes. They provide a robust defence against challenges and can be the difference between your true intentions being carried out or overruled.
Jen is a practising Solicitor / Chartered Legal Executive and Commissioner for Oaths, admitted as a Fellow in 2006 and now SRA-regulated freelance. She started working in law in 2000 and her legal experience includes both private practice and in-house. She was Highly Commended by CILEX at the 2018 CILEX National Awards 2018 for Private Client expertise and she has authored work for the CILEX journal, LexisNexis and the Parliamentary Review amongst others.