Why prepare a Will?

Many of us never get round to making a Will and some people find the process rather daunting. Not having a valid Will in place can cause problems and financial worry for your loved ones. Making a Will is the only way for you to have control of your assets after you pass away – it outlines your wishes clearly and avoids additional stress and costly, time-consuming disagreements as well as giving you peace of mind. It is therefore extremely important that you take the time to write a Will to make future provisions.

Whether you are single, cohabiting, married or divorced, you need a Will to ensure that your assets will be distributed in accordance with your wishes. It is important to note that marriage cancels out a Will (unless it is clearly stated in the Will that it is made in anticipation of marriage). If you have a valid Will and you have subsequently divorced then the Will is read as if your spouse has died. This could mean that the Will does not reflect your true wishes or even that some or all of it is no longer effective.

What happens if you do not prepare a Will?

If you pass away without having a valid Will in place (intestate), this would mean that the law would dictate how your estate is to be distributed following the Rules of Intestacy – more often than not, this is not in line with your actual wishes. These rules determine who inherits what – this depends on what surviving family you have and the size of your estate.

Only married or civil partners and some other close relatives can inherit under the Rules of Intestacy. This could result in important people, such as unmarried partners and step-children, being ignored when the estate is distributed. Assets will not be inherited by a partner (unmarried or not in a civil partnership) unless clearly expressed in a Will.

If somebody is married or in a civil partnership at the time of death and they do not have any surviving children, grandchildren or great-grandchildren, then their partner will inherit their whole estate.

If somebody is married or in a civil partnership and they pass away leaving a partner and children, then their estate will be split. The partner will inherit all personal belongings and the first £250,000 of the estate. Anything on top of £250,000 is divided in two. The first half goes to the surviving spouse/civil partner, and the other half goes to the deceased’s children in equal shares when they reach the age of 18. This could potentially create a situation whereby the surviving partner does not automatically inherit the family home.

People who are married or registered civil partners do not have to pay any Inheritance Tax on money or property they inherit from their deceased partner’s estate. This does not apply to children, so it is possible that Inheritance Tax could be payable, if the estate is over the threshold.

Cohabiting couples have no right to inherit their late partner’s estate, if they die without leaving a Will. In this circumstance, biological children would take the whole of the deceased’s estate in equal shares when they reach 18 years old. If there are no children, then potential people to inherit would be blood relatives, starting with parents and then, siblings. If there are no surviving blood relatives who can inherit under the Rules of Intestacy, then the estate passes to the Crown – this is known as bona vacantia.

Writing a Will can safeguard the future of those you care most about and avoids the potential tricky situations mentioned above. Preparing a Will provides you with peace of mind and will ensure that your loved ones are looked after.

What preparation can be done to save time and costs?

If you decide to prepare a Will, then the first thing to do is value your whole estate. It is a good idea to start by jotting down a list of all your assets (property, savings and investments, pension funds, vehicles, jewellery, art and antiques, furniture and any other personal belongings) and alongside each item estimate their value. Make a separate note of any debts and/or liabilities you have. You can now calculate how much your whole estate is worth.

Once you have a clear list of what makes up your estate, you now have the opportunity to decide how you want to divide your estate between your loved ones. It is sensible to start with any specific gifts you would like particular people to inherit using your list you have prepared. Clearly make a note of what you would like people to inherit by detailing their full name and address. You may also want particular people to inherit a lump sum of money (for example, all grandchildren to inherit £500).

If you plan to leave a gift to charity, then make sure you include the charity’s full name, address and registered charity number.

The next thing to think about is where the residue of your estate is to go. This is any property or money left over after paying administrative and funeral expenses, legacies and any tax. You can choose to leave your residue estate to more than one person in equal or even unequal shares – this is a decision for you to make.

If any of the beneficiaries (people who will inherit from your estate) are under 18, carefully think about what age you would like them to inherit. Of course, this is matter for you to decide, but sometimes people increase the age of inheritance to 21 or 25 years old.

You need to make sure you have made it abundantly clear as to what you want to happen to your estate. Not only this, but you should also outline what you want to happen if any of your listed beneficiaries should predecease you.

Last but not least, you need to choose Executors. Not only does a Will dictate who inherits from your estate, it also appoints Executors to manage your estate. Executors are the people who deal with distributing your estate and their role comes into force as soon as you pass away. Being an Executor can involve a lot of work and responsibility, so consider the people you appoint carefully. It is always recommended that you appoint more than one Executor, in case one is unable or unwilling to act.

If you have children under 18, it is even more crucial to prepare a Will and you should appoint a testamentary guardian. This is particularly important if you are a single parent. Appointing a testamentary guardian will ensure that your children are looked after by a person of your choice in the event that you pass away whilst they are a minor. This is one of the hardest decisions parents have when preparing a Will.

You must discuss the appointment with the testamentary guardian prior to choosing them.

The above preparation will save costs and time in the long run. The information can then be directly passed onto a solicitor who can provide you with legal advice and prepare a draft Will for your consideration.

Next steps

Once the Will has been drafted in accordance with your instructions and you are happy with the contents, it must be executed promptly as it will not be valid until this has been done. You must sign your Will in the presence of two independent witnesses and they must also sign the Will.

Beneficiaries of the Will, their spouses or civil partners should not act as witnesses, or they lose their right to the inheritance. It is extremely important that the witnesses are independent and over 18 years old.

After the Will has been signed correctly by you (testator/testatrix) and two independent witnesses, it must be dated. The Will is then valid and ready to be stored in a safe place. Let your Executors know where your Will is safely being kept, so that they know where it is if/when they need to refer to it.

A Will should be reviewed on a regular basis, especially if life circumstances have changed, for example, in the event of the birth of a child, new relationship, death of a relative or loved one or if you acquire further assets since preparing your Will.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 0208 004 0065, by email at [email protected] or using the form below.

The contents of this article is general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.