Why Make a Will?

How to Avoid Family Rows About Your Money

If you die tomorrow, will your property be divided in accordance with your wishes?

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Fighting Over the Family Inheritance

Reasons for Making a Will: Don’t Leave Your Grieving Relatives Fighting Over the Inheritance

An unfair or inadequate Will can create lasting grievances.

If you do not make a Will, your estate will devolve according to the law relating to intestacy (Intestacy means not having a will). The consequence of intestacy is explained below and could be bad news for a number of reasons.

Broadly speaking , a Will disposes of everything which you own. Therefore it should be carefully worded, as it will affect not only the financial well-being of your family but also its harmony.

If your estate is substantial or complicated it would be worth asking a solicitor or qualified practitioner to prepare it, as a Solicitor is experienced in providing for contingencies which you may not yourself have considered.

NB: Until my retirement I was a solicitor specializing in Probate, Wills, Divorce and Family Law. Please note that I am no longer a solicitor, and this article is merely for your guidance, and is not intended to replace appropriate legal advice.

This Advice about Wills and Intestacy Relates to the Law in England and Wales – Bear in mind it might be different in other countries.

Some of this advice would be relevant whichever country you live in, but some of the inheritance and intestacy laws might be quite different. For instance, in many European countries children cannot be completely disinherited and by law would inherit a proportion of their parents’ property, whereas in the UK it is possible for a child to be disinherited completely and get nothing. Also the tax laws and intestacy laws might be quite different, so bear that in mind as you read this.

Countries that have derived their law historically from English law such as Commonwealth and ex-colonies and, to some extent the USA, would have similar but not exactly the same rules. Countries which derive their law from Sharia Law, Roman Law, the Code Napoleon and various other bodies of law would be different in many respects.

This is what a formal will looks like:

Imaginary Will of Joe Bloggs

Imaginary Will of Joe Bloggs

Do You Need a Will? – Facts about Wills and Intestacy

You should make a Will for all or any of the following reasons:-

a) If you wish to change the distribution of your estate to anything other than the intestacy rules, for instance by giving legacies or providing for contingencies which are not covered by the rules.

b) To appoint Executors or Executors and Trustees, other than those who would be entitled under the rules relating to intestacy.

c) To appoint a testamentary guardian of minor children to look after their affairs.

d) To give additional powers to Trustees to administer your estate.

e) To give directions as to the use or disposal of your body.

f) To revoke a previous Will, even if you wish to die intestate (because, although Wills can be revoked in other ways, it is best to do so by Will).

Queen pound sign

No Wonder She’s Smiling

g) To exercise any testamentary Powers of Appointment which you may have under existing Trusts

h) If there are no close relatives, your property will pass to the Crown (not the State) if you are intestate.

Even keen monarchists may find this unpalatable

i) It may be possible to arrange your affairs to avoid or reduce Inheritance Tax. Tax is payable if your estate is worth more than the nil-rate band, currently £325,000 for each spouse or civil partner. The rate of Inheritance Tax is 40% of everything you own over and above the exempted nil-rate band. There are exemptions, in particular there is no Inheritance Tax payable where property passes between spouses or to charities, but it is normally payable when property is left to anyone else.The inheritance tax laws are complicated and you may need professional tax advice.

j) You may wish to leave your home to one beneficiary e.g. your children, but allow someone else e.g. your partner or Mother to live there until their death or marriage, with a provision that the property must not be sold without their consent, or that they must pay the outgoings.

k) If you marry, this normally nullifies any previous will; if you divorce, any existing will takes effect as though your ex-spouse has died, which may leave gaps in your will.

l) If you are unmarried partners or co-owners of property, and die simultaneously, by law the younger is deemed to have survived the older partner. Therefore if you leave everything to each other, the younger partner would inherit the older partner’s estate, which would then pass only to the next-of-kin or persons named in the will of the younger partner. The older partner’s side would be completely disinherited, so provision must be made in a will to avoid this situation.

This is Important Information:

If you get married after you have made a will, it invalidates the will completely (unless the will states specifically that it is made “in contemplation of marriage”). If you want the will to stand, you need to confirm this on the will after the wedding, and this must be signed by you and witnessed by two people,  just like the original will.

Divorce does not invalidate a will – the terms of the will are carried out as though the other spouse had died (so you might need a new executor).

If you have a straightforward will you could buy a will form and do it yourself, but if you are in any doubt, do get proper advice.

 

You can buy this one on Amazon.com

Adams Last Will and Testament with CD, Forms and Instructions (ALFP117)

 Some People Think it’s Unlucky to Make a Will

The people who might stand to benefit from your estate are even more unlucky if you fail to make a will leaving anything to them.

If you are not married to your partner, they could have big financial problems if you don’t provide for them by will.

Executors and Trustees

What’s the difference between Executors and Trustees?

An Executor is the person who carries out your Will by ascertaining the extent of your estate, collecting in the assets and distributing them in accordance with the Will.

A Trustee means a person who holds property on trust to be used for the benefit of another person called a Beneficiary e.g. you would appoint an adult Trustee to hold and manage property for a child Beneficiary until the child is old enough to look after his or her property. Some children would be considered sensible enough at eighteen and others may not be sensible at fifty, so a Trust may be for a short or for a long period, depending on the circumstances.

The Executors are usually the same people as the Trustees, but not necessarily.

Your Trustees should preferably have the ability to be able to work together and a good mix would be where at least one of them knows the beneficiaries fairly well and at least one of them is good at managing financial matters. The usual choices are therefore a close friend or relation and a professional person. Solicitors are often appointed for this reason.

The Executors too should be capable of dealing with business matters and paperwork, some of which may be complicated. The work can be quite onerous for an unpaid Executor or Trustee and you should therefore ask them first before appointing them in your Will. Professional Executors or Trustees would normally be paid.

Rules for Devolution of Property on Intestacy

Intestacy means “without having a valid will”

If you are intestate, your property would pass to your relatives.This would include your spouse or civil partner. If you have no family, or if they cannot be found, the whole of your estate would pass to the Crown.

If you do have children, your spouse or civil partner would inherit only £250,000 and a life interest in half the residue. The other half would pass to your children. This may be very inconvenient, as it would mean that your spouse or civil partner may not necessarily inherit the whole of the residence in which you both live.

If you do not have children but have other close relatives, your spouse or civil partner would inherit only £450,000 with a life interest in half the residue. This could cause hardship.

NB From time to time, the intestacy law relating to these figures is updated by more recent law, so what goes today may be different if the law changes.

“I can’t understand it, he said he’d look after me, but he put off making a will – I got nothing”

Cohabitants – Their Rights

“Common Law” Spouses are not recognized in law, unlike people in marriage or civil partnership. This means that Unmarried Partners do not have an automatic right to inherit property which is not in joint names.

The Law does not recognize the concept of “Common-Law spouse” except in very limited circumstances. A Cohabitee does not gain rights of ownership merely by contributing to housekeeping or even mortgage payments.leaving home

This does not mean that a Cohabitee will never have a right to property unless it is in joint names, but as the law is so complicated, it is much better to provide for your partner specifically in your Will in order to avoid anxiety and hardship and possibly even court proceedings.  Also, you need to be aware of the fact that there is talk of the law changing to protect cohabitees as cohabitation has become so common these days

Jointly-owned property

When property is jointly owned by two people, they need to decide how the property is to be held in the event of one of them dying. There are two ways of holding a property: –

i) Holding as joint tenants – which means that in the event of the death of one of you the property passes to the other person automatically without the need for a Will. This is the old Roman law called “jus accrescendi” which means that the “right of survivorship” passes to the surviving person.

or

ii) the property may be held as tenants- in- common and this means that on death the property does not pass to the other person automatically; if there is a Will, it passes in accordance with the Will and if there is no Will it passes to the person’s next- of- kin. The Will might define whether the survivor has a right to continue to live at the property and how the property should devolve if there are children of one or both parties.

When partners are not married it is usual for them to hold jointly owned property as tenants-in-common. They can still pass the property to each other by Will if they want to but if they do not, then they can pass it to someone else. There are often reasons why married couples too would want to hold the property as tenants in common, so that they can each dispose of their individual share – for instance if either of them has a second family or for tax planning.

If you do not already have Wills it would be important to make a Will concerning your share of jointly-owned property. Even if you have, for example, a 100% mortgage, on your death this might be paid off by an insurance policy and there would then be a very substantial asset in your estate.

Unmarried Parents and Wills

stick men family 450

If you have children, the father does not always have automatic Parental Responsibility and if you both agree that he should have this, you may need to sign a Parental Responsibility Agreement, and register it at your local Court. However, under a recent law, if a father attends to register the baby’s birth and his name is entered on the birth certificate, he will now have automatic Parental Responsibility.

Unmarried fathers without Parental Responsibility have few rights with regard to their children.

But an unmarried father still has a legal duty to maintain his children.

Also, if the mother dies, the father does not have an automatic right to have the children residing with him. If they do not already live together, problems could arise if there are also other family members who wish to take on the responsibility of looking after the children. If the family cannot agree where the children should live, an application for residence and or contact would have to be made through the court, who would then have to consider what is in the best interests of the children. All this confusion and uncertainty at a time when they are already suffering from the bereavement.

Even if there is not much of value in the estate, the mother should therefore make a will appointing the father as testamentary guardian (if this is appropriate).

If you would like More information Follow the Links Below – Useful facts about Intestacy and Probate and a chilling and very relevant article about Elder Abuse

There are plenty more articles on the internet – there are huge droves of solicitors with excellent advice websites, in every country and language you can imagine. But on this web page I don’t want to favour one firm of solicitors over another, so I have kept to neutral organizations who are not trying to sell a specific service.

Or you can get this bumper sticker “I Fought the Law and the Law Won”:

 

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About Diana Grant

I enjoy reading, collecting books, writing articles and poetry, gardening, cooking, current affairs, craft work, computing, and being with my family. I'm interested in human rights and family law. Until I retired a few years ago, I was a solicitor practising in London. Follow Diana's board Books on Pinterest.
Aside | This entry was posted in Family Law and Advice and tagged , , , , , , , , , , , , , . Bookmark the permalink.

5 Responses to Why Make a Will?

  1. omorris2014 says:

    Dear Diana, great article. One that many people, myself included should see again and again until they (me) get their acts in gear…..There is nothing worse than dying without your will being properly taken care of…..I would go one step further and suggest that people also make living wills and possible “DNR” (do not resuscitate) wills as well…..again this might not be necessary depending on where you live….

    Liked by 1 person

    • Diana Grant says:

      Yes, I think a Living Will is a good idea – you never know when you’re going to land up in a vulnerable state where you are unable to declare your wishes; and an admonition not to resuscitate would be a good idea in the event that you are living in intolerable circumstances. I personally would start with an Organ Donor Registration Card – a simple gift to posterity (though I doubt whether anyone would want my aged and worn out organs!).

      Like

  2. Janice Wald says:

    I wanted to share this, but I don’t see your social share buttons.
    Janice

    Liked by 1 person

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