The main reason to make a Will is to control how your estate is divided. Your Will tells everyone how you want your money, possessions, property, and any other effects (your ‘estate’) distributed after your death.
- A Will doesn’t leave your friends and family guessing, it provides a clear framework for the distribution of your estate, thereby reducing time and stress for those left sorting it out
- A Will helps ensure your intentions are carried out, it enables you to distribute your effects in the way you intended
- A Will can help reduce the IHT (inheritance tax) for your beneficiaries – who wants the government to be the main benefactor? Careful Will drafting provides an opportunity to assess your estate and consider what steps can be taken to mitigate the IHT liability.
- A Will is especially important if you have financially dependent children, other families, or people outside your immediate family.
But it is not just about money. Your Will is also the document in which you appoint guardians to look after your children or your dependents.
Considering who will be guardians of your children in the event of your death is an emotionally difficult decision to make. Nonetheless, it is in the best interests of your children to ensure they are placed with the people you want to bring them up, and both parents should (each) make a Will appointing guardians and making proper financial arrangements for them as they grow up.
In addition to instructions on how your estate should be divided, a Will also is used to appoint an executor, i.e. the person or persons to whom you entrust the task of carrying out your wishes to make sure your property goes to whom it is intended. Your Will may also include instructions on your burial or cremation.
There’s no guarantee that your executor(s) will carry out your wishes exactly as instructed, but there’s a better chance of that happening with a well-drafted and legally valid Will.
Dying without a valid Will
If you die without a valid Will, the intestacy laws dictate how your property will pass. This means you have no control over who will receive your property. There are different intestacy laws depending on where you live, but generally:
- The distribution rules are fixed – and almost impossible to challenge.
- If you’re not married or in a civil partnership, your partner is not legally entitled to anything when you die. As an example, we had a client who had a major falling out with his father, was living with his long-term partner, and her children whom he’d been like a father to. He died unexpectedly and his entire estate went to his father with whom he’d cut off all contact 20 years prior after a major falling out.
- If you’re separated but not divorced, your ex will inherit at least the first £270,000 of your estate and your children might not get anything.
- If you have children or grandchildren, how much they are legally entitled to will depend on where you live in the UK – but if you make a Will, you can decide this yourself.
- If you’re married, your spouse (even if you’re separated) gets all personal possessions, so for example, if there was a special piece of jewellery you wanted to give to your niece, you’ve missed your chance.
- Any IHT that your estate has to pay might be higher than if you had made a Will.
- If you die with no close relatives, your whole estate will pass to the Crown or to the government.
In addition, if you die without making a Will, statutory rules determine who deals with your estate.
Any assets you hold in joint names with another person generally passes automatically to that person upon your death. However, if the property is a house or land (depending on how the title deeds are held) it is possible that it would not pass automatically, you need to own the asset as ‘joint tenants’ and not as ‘tenants in common’ for survivorship to apply.
Even if you think that you will not die for a long time – and we hope you are right! – do not make the mistake of viewing a Will as something for old people. Treat it more as single premium insurance to cover the consequence that loved ones may suffer if you die without one.
Need to know more? If you have a question or would like more information please contact me or a member of our team at email@example.com firstname.lastname@example.org
Julie KitsonDirector, Trusts & Estate Specialist