Making a Will

A Will the most important document you can make. We are here to prepare and empower you to realise your Will.

We will help you make considered choices to create a document that:

• gives you control over what happens to your assets when you die
• provides for family and dependants
• allows you to make gifts that reflect your love for special people.
• gives you the peace of mind, knowing your affairs are in order.

We can provide a Will tailored to the needs of

• Married couples and Civil Partnerships
• Individuals and single people
• Cohabiting Couples
• Divorced and Separated People
• Step Families
• Wills for Business Owners
• Wills for Families and children with Special Needs
• Care Home fees and Estate Planning wills.

We will always be conscious of any tax liability you may incur and will identify how lifetime planning, or reviewing any current Will, can protect your exposure to Inheritance tax, by using our specialist knowledge of property, trusts and tax law, that will benefit you in the planning for future eventualities.

We can protect your assets by ensuring you make positive, well considered choices to guard against future care home fees or financial based means assessments.

Preparing Your Will

A Will is the most important document you can make. I am here to prepare and empower you to realise your Will.

I will help you make considered choices to create a document that:

• gives you control over what happens to your assets when you die
• provides for family and dependents
• allows you to make gifts that reflect your love for special people.
• gives you the peace of mind, knowing your affairs are in order.

I can provide a Will tailored to the needs of

• Married couples and Civil Partnerships
• Individuals and single people
• Cohabiting Couples
• Divorced and Separated People
• Step Families
• Wills for Business Owners
• Wills for Families and children with Special Needs
• Care Home fees and Estate Planning wills.

I will always be conscious of any tax liability you may incur and will identify how lifetime planning, or reviewing any current Will, can protect your exposure to Inheritance tax, by using our specialist knowledge of property, trusts and tax law, that will benefit you in the planning for future eventualities.

I can protect your assets by ensuring you make positive, well considered choices to guard against future care home fees or financial based means assessments.

Wills, Probate and Estate Planning

• Preparing your Will
• Living Wills
• Free Wills
• Trusts and Tax
• Powers of Attorney
• Inheritance Tax
• Charitable Giving
• Care Act 2014
• Care Homes

Unregulated Legal Services

The Solicitors Regulation Authority (SRA) Standards and Regulations, introduced on 25 November 2019, allow solicitors to deliver non-reserved legal services to the public from within a business not regulated by a legal services regulator.

Paul Darnborough Legal is not a regulated business. If you require any work done that is considered a reserved legal activity – for example applying for probate, this work must be conducted by a regulated solicitor.

Do not hesitate to speak to me for further information and guidance on this subject

Simple Notes On Making a Will

I am often asked by clients –

As a long in the tooth practitioner I often forget how stressful the thought of making a Will can be. Here’s some notes that I hope will help.

• What do I need to make a Will?

• How do I go about it?

• What do I need to think about?

Whilst every Will is different, unique and personal. There are many features common to all Wills. Let me explain.

1. The Testator.

We start by naming the Testator – a formal title for the person making the Will. Or to be even more formal the Last Will and Testament.

So, dear client; You are the Testator, this is the legal term for an individual who creates a will. In the past, you would have also seen the term “Testatrix,” which was traditionally used to describe a female individual who created a Will. However, this term is old-fashioned and the term Testator is now used for both males and females.

When you make a New Will and correctly ‘execute’ the same (correctly date and sign the Will) this automatically revokes a former Will. Meaning that any previous Will is no longer valid

When a person (the ‘Testator’) makes a valid Will, section 20 of the Wills Act 1837 states that it can only be revoked in three ways: by the Testator making another Will or codicil; by them signing a revocation provision (a professionally drafted Will will always include this provision) or by destruction.

Kindly note, all Wills prepared by us will always contain the provision that formally revokes any formerly drafted or prepared Will, so this document is your new Will.

2. The Revocation Clause

As mentioned above all our Wills contain a clause which revokes (cancels) any previous Will and declares this new Will to be your last and current Will.

3. Executors

An Executor is the person or persons who will carry out the administration, or enact the wishes contained in our Will after your death. They attend to the administrative tasks following your death and deal with your assets.

Their job is to collect all your assets – money, stocks, shares, sell your house, pay off any debts and or tax applicable to your estate and then, when all the assets have been accumulated and the debts paid distribute the estate in accordance with the wishes stated in your Will.

Executors jobs

• Locate and identify all assets and liabilities of the estate
• Deal with the administration of the estate according to law by collecting these assets
• Locate the beneficiaries
• Apply to the probate registry for a grant of Probate of the Will. The Probate Certificate is a formal document confirming the names of the executors and gives then permission and authority to administer the estate (property cannot be sold without proof of Probate and some banks require sight of the Probate Certificate before releasing funds to the executors.)
• Pay off all debts and any claims on the estate if substantiated
• Arrange for the distribution of the estate in accordance with the terms of the Will
• Prepare Estate Accounts – these being the detailed spread sheet of the assets and debts of the estate that allow an assessment of any Inheritance Tax that may be due on the estate.
• Deal with taxation of the estate.
• If a trust exists in the Will, then the Executors are also appointed as Trustees and they will have to manage any trust, hold money on trust for any children to attain the age specified in the Will, or until the child is 18. The Will must give the Trustees power to pay monies for maintenance or education or any conditions to meet the child’s needs that have been created by the Will.

If these tasks seem overwhelming you can always appoint a professional solicitor or advisor to assist with the administration of the estate.

4. Your Estate

Everything owned by a person who has died is known as their estate. The estate may be made up of: money, both cash and money in a bank or building society account. This could include money paid out on a life insurance policy. money owed to the person who has died.

You can, of course, do what you wish with your estate. Many people leave charitable gifts but the usual provision is to take care of a spouse and all surviving children.

5. Beneficiaries
   
   A beneficiary is someone who is named in the will as someone who will receive a benefit or gift from the person who has died. A properly written will should make clear what each beneficiary is to receive

We suggest, that your main beneficiary is your spouse, then children and then wider issue. (relations)

6. Gifts

A specific gift is a particular item or sum of money that you wish to give someone in your Will, for example, a house, a piece of jewellery, £10,000. It is important that the gift is described precisely in your Will, so that the executors can understand exactly what you intended.

7. Charitable Donations and Giving.

I have been appointed by CRUK and The National Free Wills Network as a professional Will Writer. I have been carrying out this role for the past 9 years and have written literally hundreds of Will containing charitable donations within them.

If you make a charitable gift (or various charitable gifts) in your Will, there is tax relief; those charitable gifts are Inheritance Tax free. Further, if 10% or more than 10% of your estate is left to charity, the rate of Inheritance Tax applicable to your entire estate can be reduced from 40% to 36%.

I can discuss this in more detail should you require

8. The Residuary Estate

In most Wills after debts and any inheritance tax have been paid, the estate is shared among the beneficiaries in accordance with the will. The residuary estate is whatever is left of the deceased’s estate after all specified gifts have been handed out and debts, funeral expenses, and taxes have been paid.

Most Testators leave the residue (what’s left) of their estate to their surviving spouse or children, if they, or you, have them. Of course, you can do whatever you wish with your assets. That’s what a Will is their to do.

9. Funeral Wishes
   
   We can include your funeral wishes in your will. However, under current law, funeral wishes in a will are not legally binding. The executors appointed in a will have ownership of the body and are technically considered the decision-makers with regards to funeral arrangements. We suggest you discuss with your executors any arrangements you wish to make, and set these out in your Will as a direction.
   
10. STEP Provisions

We include the STEP Provisions in our Wills. (STEP are the Society of Trust and Estate Practitioners.) You may have seen ‘old style’ Wills where every power or act of a Trustee or Executor was written out in long hand

STEP has published the Third Edition of its Standard Provisions. The STEP Standard Provisions are a set of ready-made clauses that can be inserted into a will. They provide protections and powers that enable the executors or trustees to effectively deal with the estate we include these powers by referencing their inclusion in your Will.

If you wish to study the detail, please use this link

https://www.step.org/public-policy/step-standard-provisions

In certain circumstances we may chose to amend the provisions and we will explain this to you as necessary.

11. The Attestation Clause

A well drafted will always contains an “Attestation Clause” at the end. This will set out when the will is signed, who signed it and who witnessed the will. Further, it will describe accurately how the will should have been executed.

If a will is correctly executed, it has formal validity (that is, it is recognised as a valid testamentary document).

If a Will has not been correctly signed and witnessed it is invalid and this can lead to problems applying for probate. There are provisions to allow the making of affidavits to explain why the Will was incorrectly executed. This can be a costly time consuming exercise, which is why the correct procedure should always be followed. We will explain this to you in person.

12. Copies of your Will

We will provide original copies of your Will for you to keep in a safe and secure place. We will provide a copy for your Executor and Trustee

We do not currently store Wills. As we don’t wish to charge you for this service. Plus we might lose them. (I’m joking)

Living Wills

Making a Living will allows you to make your own decisions about your future care.

This advance decision allows you to plan for circumstances where you wish to refuse treatment or, not be resuscitated, or artificially kept alive.

An advance decision is a decision to refuse treatment; an advance statement is any other decision about how you would like to be treated.

Only an advance decision is legally binding, but an advance statement should be taken into account when deciding what is in your best interests.

We will discuss this sensitive area with you in detail and preparing the necessary documentation. Alternatively we will put the appropriate clauses in your Will.

Please do not be afraid to raise this sensitive area with us, for a confidential conversation.

When you are ill, you can usually discuss treatment options with your doctor and then jointly reach a decision about your future care. However, you may be admitted to hospital when unconscious or unable, on a temporary or permanent basis, to make your own decisions about your treatment or communicate your wishes. This may happen, for example, if you have a car accident, a stroke or develop dementia. To use the legal term – you would ‘lack mental capacity’ to make an informed decision and/or communicate your wishes. In such situations, doctors have a legal and ethical obligation to act in your best interests. One exception to this is if you have made an advance decision refusing treatment. If this decision is valid and applicable to the circumstances, medical professionals providing your care are bound to follow it – whether or not they think it is in your best interests.

The term ‘living will’ doesn’t have a legal meaning but can be used to refer to either an advance decision or an advance statement. An advance decision is a decision to refuse treatment; an advance statement is any other decision about how you would like to be treated.

Only an advance decision is legally binding, but an advance statement should be taken into account when deciding what is in your best interests.

What is an advance statement? 

This is a general statement of your wishes and views. It allows you to state your preferences and indicate what treatment or care you would like to receive should you, in the future, be unable to decide or communicate your wishes for yourself. It can include non-medical things such as your food preferences or whether you would prefer a bath to a shower. It could reflect your religious or other beliefs and any aspects of life that you particularly value. It can help those involved in your care to know more about what is important to you. It must be considered by the people providing your treatment, when they determine what is in your best interests, but they are not legally bound to follow your wishes.

Advance statements can also be used to let the people treating you know who you would like to be consulted when a decision has to be made, if you are unable to make that decision yourself. If you create a Lasting Power of Attorney (LPA), you could record an advance statement in the LPA document. An LPA can be used if you want to give someone else, or more than one person, the power to make decisions about your care and treatment if you are not able to do so yourself. Your attorney(s) must take your advance statement into account when deciding what is in your best interests. ( see Power of Attorney section)

What is an advance decision to refuse treatment? 

An advance decision to refuse treatment is the only type of living will that is legally binding. An adult with mental capacity can refuse treatment for any reason, even if this might lead to their death. However, no one is able to insist that a particular medical treatment is given, if it conflicts with what the medical professionals providing the treatment conclude is in the patient’s best interests. This is why an advance decision can only be a refusal of treatment.

An advance decision to refuse treatment must indicate exactly what type of treatment you wish to refuse and should give as much detail as necessary about the circumstances under which this refusal would apply. It is not necessary to use precise medical terms, as long as it is clear what treatment is to be refused in what circumstances.

An advance decision can only be made by someone over the age of 18 who has the mental capacity to make the decision. This means they must be able to understand, weigh up and retain the relevant information to make the
decision to refuse treatment; and they must then be able to communicate that decision.

How to make an advance decision to refuse treatment

An advance decision does not have to be in writing, unless it is a decision to refuse life-sustaining treatment (see the next section below for the legal requirements for this type of decision). Verbal instructions can amount to a valid advance decision but there is more risk that a verbal refusal of treatment would not be carried out. The person providing treatment may not be aware of it, or there could be uncertainty about its validity or applicability. For example, a statement made by a patient during a discussion with their doctor that they would not wish to have a particular type of treatment in certain circumstances in the future can be a valid advance decision even if it is not put in writing. It would be best practice for the doctor to record the statement in the patient’s medical records, but it can still be valid if this is not done. Even if you are putting your advance decision in writing yourself, it is a good idea to discuss it with your doctor. To avoid uncertainty over the validity of an advance decision you should put it in writing, or ask someone else to write it down for you if possible.

The following guidelines could be helpful:

• Put the decision in writing.
• Include your name, date of birth, address and details of of your GP.
• Include a statement that you wish the advance decision to apply if you lack the capacity to make the decision yourself at the relevant time.
• Specify what kind of treatment is to be refused and in what circumstances, giving as much detail as possible.
• Sign and date the document.
• Ask someone to witness your signature.

You could ask your doctor or another relevant professional to sign a statement on the document stating that they have carried out an assessment of you and, in their opinion; you have the mental capacity to make the decision. Remember that the above points are not legal requirements, but they can help to avoid uncertainty over the validity and applicability of your advance decision.

There are legal requirements if you are making an advance decision to refuse life-sustaining treatment. See below for details of these.

How to make an advance decision to refuse life-sustaining treatment. 

If you want to make an advance decision to refuse life-sustaining treatment, it must meet certain requirements set out in the Mental Capacity Act. Life sustaining treatment is defined in the Act as treatment that, in the view of the person providing health care to the person concerned, is necessary to sustain their life. This could include artificial nutrition and hydration to someone who cannot eat or drink by mouth.

The legal requirements for a valid advance decision to refuse life-sustaining treatment are as follows:

• The decision must be in writing. You can ask someone else to write it down if you can’t do it yourself.
• You must sign the document. You can instruct someone to sign it on your behalf in your presence if you can’t sign it yourself.
• Your signature (or the signature of the person signing on your behalf) must be witnessed. The witness must also sign the document in your presence.
• You must include a written statement that the advance decision is to apply to the specific treatment even if your life is at risk.

At Paul Darnborough Legal we will engage with you to make considered choices about what treatment you may wish not to receive in situations where you anticipate that you may have lost the power to make your own decisions.

We will facilitate a compassionate and inclusive dialogue that leads to a resolution of your deeper concerns. Reflecting on my father’s decent into dementia, my family regret the fact that my Dad failed to make a living will.