WILL WRITING & ESTATE PLANNING
Making a Will is something that a lot of people put off doing but it is important that everyone has a Will and makes sure that it is kept up to date to cover changes in significant life events, such as buying a first home, the arrival of children, marriage, separation or divorce.
Why make a Will? Aren’t there intestacy rules to say who the money goes to?
If you don’t have a Will then your assets or estate will pass under intestacy rules. Dying intestate means you don’t get a say over who your estate goes to and it may make it more likely that family members will fall out about the financial provision given to them. If you make a Will not only can you decide who gets your money but you can also put conditions on gifts , such as a child should only get their inheritance when they are 21 or 25 or even later. You can also decide who should sort out or administer your estate by appointing executors and trustees in your Will and giving them powers to advance money to your children if they need it , for example to pay university fees or to provide a deposit on a first house. In some family scenarios dying without a Will doesn’t cause lots of additional complications and worries for family members but 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 cover for loved ones and preparing a Will should be on the same ‘to do’ list as one of life’s essentials.
I have a Will, why does it need updating because of my marriage?
Lots of property owners are encouraged to make a Will when they buy their first house but Wills do need to be updated. When you marry any existing Will you may have is automatically revoked. That means if you die then your estate 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 express your Will as being made in contemplation of your planned marriage.
I have a Will but I am getting divorced. Does the Will remain valid?
When you get your decree absolute of divorce or dissolution of civil partnership any provision in your Will for your former spouse or civil partner ceases to have effect. That may not be appropriate as you may be under an obligation to pay your former spouse or civil partner spousal maintenance or you may want to change other aspects of your Will in light of your divorce or dissolution.
I own a property with my partner and as I don’t own anything else I don’t need a Will, do I?
If you jointly own a house as joint tenants the surviving partner will automatically inherit the property as your share in the home will pass to the surviving co-owner. However lots of co-owners decide to buy houses with their partner as tenants in common. This type of joint ownership means that their share of the property passes by their Will or under intestacy rules if they don’t have a Will. It is always important to check how you jointly own a house when preparing a Will. It is equally important to check out what you own. Lots of people forget about life insurances or pension provision. Sometimes these assets will pass by nominations (if accepted by the trustees) and in other situations the assets will form part of your estate. That is one of the reasons why it is important to get specialist legal advice when drawing up a Will.
My personal and financial affairs are very complicated and I don’t know where to start with estate planning
It is not unusual to not know how you want to leave things to family and friends or to worry about the provisions in your Will becoming public knowledge. Our lives can be very complicated with former spouses and partners, current partners and spouses as well as children and step children and, in the fullness of time children’s partners and grandchildren. If you are uncertain about how you want to leave your estate then you can put all or some of your estate into a trust created by your Will. This means that after your death trustees appointed by you can decide how much and when your beneficiaries should receive any money. This type of discretionary trust gives lots of flexibility to cover changes and importantly the trustees can be guided by your preparing a separate document known as a letter of wishes setting out how you would want the trustees to exercise their discretion and hand out money. Trusts give a degree of privacy and flexibility. Often even if personal affairs are not very complicated people tend to create trusts in their Will because it avoids the need to keep changing the Will as you can just update your letter of wishes.
I want to offer one of my children some money now but I don’t want that to affect my other children
Many parents want to help their sons and daughters get on the property ladder or to go up a rung on the ladder or parents feel the need to provide financial help after a messy divorce so that their child can buy a suitable house. Alternatively you may want to advance money to grandchildren so that they can clear student debt or buy a house. It is possible (and potentially inheritance tax efficient) to give money to relatives while you are alive and for this gift to be taken into account in any eventual legacy so that one child or grandchild doesn’t get more than the rest of the family. There are lots of ways in which family members can be helped out, such as a loan by you or gift or an advance from a trust. We work with your professional advisors and accountant to look at the best options for you to balance the family needs, any inheritance tax mitigation concerns and any worries about any gifted money being seized by the child’s spouse if there is a divorce or dissolution of a relationship.
Can I write my own Will?
Yes, you can but we would not recommend that you do so. That is because Wills are tricky legal documents and the consequences of getting the Will wrong can be very expensive for your family and add to the risk that someone might challenge the Will.
Can my Will be challenged?
Yes a Will can be challenged and that is why we recommend that you take legal advice to make sure that your Will is as effective as possible and that you get advice on potential claims and how to deal with them. The cost of challenging a Will through Court proceedings is very high so it is vital that you get specialist legal advice to make sure your Will is fit for purpose and that it is reviewed when significant life events occur.