Should I make a Will? Won’t intestacy rules protect my family?
It is important that everyone has an up-to-date Will. I am not just saying that because I’m a private client solicitor who specialises in preparing Wills! I am saying it because, in my job, I see the extra heartache and the legal costs when a loved one dies without a Will or dies with a Will that is not fit for purpose.
Why make a Will, aren’t there intestacy rules to say who the money goes to?
That is a question that I’m often asked. It is right; if you don’t have a Will then under intestacy rules your money will go to your relatives. However dying intestate means you don’t get a say over who your money goes to. In some situations it can mean that wealthy parents get all your money (creating a bigger inheritance tax bill when they pass away) whereas you might have wanted some of your money to go to a girlfriend, a nephew or to charity. It also means that it is more likely that family members will fall out over the money allocated to them under the intestacy rules.
If you make a Will then you decide who gets your money. You can also put conditions on gifts, such as a child should only get their inheritance when they are 25 or older. You can also decide who should sort out your estate by appointing executors and trustees in your Will. The trustees can be given the power to advance money to your children if they need it, for example to pay university fees.
In some family scenarios dying without a Will doesn’t create a lot of additional legal complications (although it may still create extra stress for family members). However in some family situations it does, such as:
- unmarried partners and families;
- where you have been married more than once;
- if you have young children who need legal protection, such as appointing a testamentary guardian in your Will ;
- if you are a business owner.
Most of us understand the need to sort out insurance for our family and preparing a Will should be on the same ‘to do’ list as one of life’s essentials.
I have a Will, does it need updating because of my marriage?
When you marry any existing Will is automatically revoked, meaning that if you die your money passes under intestacy rules. Those rules may produce a very unfair result or a legal dispute between relatives over who should get what. It is therefore vital that you make a new Will when you get married or alternatively say in your Will that the Will is being made in contemplation of your planned marriage.
I am getting divorced. Do I need a new Will?
If your marriage is ended by a court order (like divorce or annulment) your Will is not void or invalid.
What happens is that any gift to your former spouse takes effect as if he or she had died on the date your decree became absolute.
That usually means the gift falls back into residue for the benefit of the residuary beneficiaries. Of course, if you had left everything to him or her, then the effect is as if you had died intestate and the rules of intestacy once again decide how your estate is distributed.
Similarly, if by your Will you had appointed your spouse as an executor or trustee, the Will still takes effect as if he or she had died on the date the decree became absolute.
Even if you had appointed him or her as trustee of a trust for the benefit of the children of both of you, or as a guardian of a child or children, the trust fails. That might not be what you want – although you are divorced, you may still like your ex-husband or ex-wife to be responsible for any children’s trust fund.
So it is best to make a new Will immediately after your divorce, especially if your spouse or civil partner was a beneficiary or a trustee.
However, because your Will does not become invalid at divorce, you can make a new Will at any time after separation but before divorce so that these issues do not occur. You do not have to await the decree absolute.
I own a property with my partner. I don’t own anything else so I don’t need a Will.
There is more than one legal way to jointly own a house. If you jointly own a house as ‘’joint tenants’’ the surviving partner automatically inherits the property. However many co-owners buy a house with their partner as ‘’tenants in common’’. This type of joint ownership means that their share of the property passes by their Will or if there is no Will under intestacy rules. It is always important to check how you jointly own a house when preparing a Will.
Can I write my own Will?
Yes, you can but I wouldn’t recommend that you do so. That is because Wills are tricky legal documents. The consequences of getting the Will wrong can be legally expensive and stressful for your family. It can also add to the risk that someone might challenge the Will.
The legal Court costs of challenging a Will are high. So , in my view , it is money well spent to get specialist legal advice to make sure your Will is fit for purpose and to get it reviewed when significant life events (such as marriage, the birth of children or grandchildren, divorce, new relationships) occur.
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How much does a Will cost?
A bespoke Will drawn up by an experienced and regulated solicitor isn’t as much as you might think.
If you already have a Will then you may want to get us to check and review it. That’s because family and personal circumstances change so your old Will may not be ‘’fit for purpose’’.
Some people have complex finances and businesses and need in depth advice on trusts and estate planning or on domicile. However, even if your situation is not complex, it is be easy to fall foul of inheritance tax and that means your estate could pay more than it needs to in tax. Your old Will might have cumbersome tax planning clauses that are no longer needed and future expense can be avoided. You and your family may therefore benefit substantially from tax input. If you need advice on tax structures, trusts or overseas assets then please call me for a quote.
Everyone needs a Will and as all of our personal and financial circumstances are different. That is why it is important that everyone takes bespoke advice, at a cost they can understand, to make sure that their Will meets their needs.
If you need a Will or a Lasting Power of Attorney or want me to review your existing Will or Lasting Power of Attorney then please contact us.