Reasons to make a will
Why do you need a will? In essence, it is a question of retaining some degree of control regarding how your estate passes on your death and ensuring there is some measure of certainty.
We spend most of our lives working to provide for ourselves and our loved ones and that same principle applies when we pass away and we wish to make provision for the people we love.
You may have a house or flat (in the UK or overseas), shares, savings, investments as well as your personal and digital possessions. All of these assets comprise your ‘estate’. Making a Will ensures that when you die your estate is shared according to your wishes and passes to the people that you wish to inherit in the event of your death. It also ensures that all of your affairs are left in good order and that you can ensure that your wishes are honoured.
What happens if you die without a Will?
If you die without leaving a valid Will, you will have no say in what happens to your estate. Instead, the ‘Rules of Intestacy’ will divide your estate in a pre-determined way and this may not be to the people who you wished to benefit or in the proportions that you wished the beneficiaries to inherit.
It also may not be carried out in the most tax-efficient way. There is also a risk that your estate will pass to the ‘Crown’ which may not be what you intended. You are also not able to nominate Charities as beneficiaries if you do not have a Will.
If you live with someone, even if you are married, are in a civil partnership or have step-children, they may not automatically inherit your estate.
Why make a Will?
If you own any assets, then it is important for you to consider making a Will, irrespective of the value of your estate and it is particularly important that you have a Will if you have children, you own property, or have savings, investments, insurance policies or you own a business.
It is vital to make a Will if you are not married or are not in a registered civil partnership (a legal arrangement that gives same-sex partners the same status as a married couple).
This is because the law does not automatically recognise cohabitants (partners who live together) as having the same rights as husbands, wives and civil partners. As a result, even if you’ve lived together for many years, your cohabitant may be left with nothing if you have not made a will.
We can also advise you on how inheritance tax may affect what you own.
You should also consider taking legal advice about making a Will if:
- people could make a claim on your estate when you die, particularly if they depend on you financially;
- you want to exclude someone from inheriting under your Will;
- you want to include a trust in your will (perhaps to provide for young children or a disabled person,
- you want to potentially save tax,
- you want to protect your assets in some way after you die;
- your permanent home is not in the UK, or you are not a British citizen;
- you live here but you have overseas property;
- you own all or part of a business and you want to make a gift of your interest in the business.
We can tell you what changes or circumstances may make it necessary to create or update your Will and we can tailor your Will to suit your particular circumstances to suit your needs and requirements.
A Will allows you to decide who will deal with estate administration
If you do not have a Will, people who you would not wish to, may be entitled to administer your estate and will have access to your money, assets and property. If you have a Will you can choose your Executors and you can choose the most appropriate person or people to deal with administering your affairs.
You must name the people you want to appoint as Executors of your will – the people who carry out the administration of your will after your death. These could be friends or family members, or a professional such as your solicitor.
Ideally, you should choose someone who is familiar with financial matters. Make sure you ask your executors whether they are happy to take on this duty as there are long-term responsibilities involved and financial implications if they make a mistake as Executors can be held personally liable. That is why it is always prudent to involve your Solicitors in some capacity as your Executors.
If you are concerned that in the event of your death, your spouse or civil partner may remarry or cohabit with another person or make unwise decisions then rather than leave your estate to them as an absolute gift, you can create a Will Trust to ensure that assets can be enjoyed by them for the rest of their life and when they die, the estate can then pass on to successive generations such as children or grandchildren, who you choose.
By making a Will you can make plans for future generations, such as children and grandchildren and ensure that those assets are protected for successive generations.
If you do not have a Will, you cannot decide who will inherit your estate.
Age of entitlement
If you do not have a Will, the law says that a beneficiary is entitled to inherit at age 18. However, you may consider it prudent to defer the age of vesting to ensure that a beneficiary only receives the bulk of their entitlement once they reach the age of say 21, 23 or 25 and in the mean time money can be advanced to the beneficiary for their education, maintenance or general benefit to ensure that all the inheritance is not squandered. By making a Will you are able to put in place these safeguards.
Make decisions for a vulnerable or disabled beneficiary
A Will is also vital if you have young children or dependents who may not be able to care for themselves. Without a will there could be uncertainty about who will look after or provide for them when you die.
If you have family members that would be unable to manage an inheritance wisely then if you do not leave a Will they will be allowed to have unfettered access to the inheritance. By making a Will you can create a Trust in your Will to decide how little or much they are entitled to receive. By making a Will you can also ensure their entitlement to means tested benefits remain unaffected.
What is domicile and why is it important?
If you were born, or have significant, long-term residential or business connections outside England and Wales, this may have tax and administration implications. We can advise you about these complex issues and how it could affect your Will.
How to write a Will and reasons for using a solicitor
First, you must list what you have in your estate, then you can decide how your estate is to be shared between beneficiaries (who gets what). You also need to think about:
- what happens if any of your beneficiaries die before you do
- who will look after your children (if you have any). If you have any children who may be under 18 when you die, you may need to name someone as their legal guardian.
- who should carry out the wishes contained in your will (your Executors)
- any other wishes you may have, for example whether you want to be buried or cremated. Are there any other instructions? For example, if you want to be an organ donor this can be included in your will, although it won’t be legally binding. However, it is also a good idea to record your wishes on the organ-donor register, or to carry an organ-donor card.
Trying to make your own Will, without legal assistance, is fraught with problems and can lead to mistakes or lack of clarity and could mean that your Will is invalid or does not validly dispose of all of your estate, which may lead to a partial intestacy. This could also lead to disputes between parties and so many ‘homemade Wills’ result in costly litigation because there is scope for differing interpretations or are poorly drafted and render the Will invalid or open to challenge by third parties.
Reasons to update a Will
Once you have written your Will you should review it regularly to make sure it reflects your wishes, especially if you:
- get married / enter a civil partnership as a will is automatically cancelled by these events
- get divorced
- have children or other relatives you wish to benefit, for example nieces, nephews or grandchildren
- have bought a new property or have recently obtained expensive assets (such as buying a new car) or have inherited assets
After you have had a Will drawn up, some changes to your circumstances – for example, marriage, civil partnership, separation, divorce or if your civil partnership is dissolved (legally ended) – can make all or part of that will invalid. You should review your will regularly, to reflect any major life changes.
Where to keep the Will?
It is important to keep your Will in a safe place and tell your executors, a close friend or relative where it is. People often ask their solicitor to store their Wills for them because if a client stores the Will and it cannot be found at their death, it raises a presumption.