Making A Will - Why is it so Important?
Quite alarmingly around 70% of people in the UK do not have a Will yet the importance of making a Will can not be underestimated. Thinking about what will happen on one’s death is not something that anybody wishes to consider and putting off making a Will is of course so easy to do - “I have been too busy” or “I cannot decide what to do with my estate” are some familiar excuses. There are many misconceptions insofar as inheritance and succession are concerned and this article aims to demonstrate the consequences of not making a Will. Why make a Will?
Where a person dies intestate (i.e. without having made a Will) their Estate (the term given to all their assets) is shared out in accordance with the provisions contained in the Administration of Estates Act 1925 and the Intestate has no control over who his possessions are left to. In these situations, the people who you want (and perhaps assume) to benefit from your Estate may not. Co-habitees are particularly at risk here - if one co-habitee dies, it is that cohabitee’s family who would benefit from the Estate, leaving the surviving co-habitee with nothing; they may even be forced to leave their home. The only redress they may have is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This in itself is not straightforward in that it would involve showing that they had been maintained by the deceased which can in some cases be hard to do especially where the co-habitees shared everything equally. Legal costs in making such a claim would also have to be considered as they can be high.
By making a Will you can ensure that the person or persons who you want to look after your children are appointed guardian(s) in the event that you die before they reach 18.
Your wealth can be apportioned by your Will in order to mitigate inheritance tax liability. The current threshold for inheritance tax is £325,000.00 (for the tax year 2009/2010); anything above this is then taxed at 40%. Gifts of certain assets and gifts to certain beneficiaries are tax exempt. Making a Will can ensure that the reliefs and exemptions available are used in the most effective way.
You may have a loved one who is unable to deal with their own affairs for example because they are too young or disabled. In this instance a Will can be drafted to include a trust which is a method of ensuring that after your death, your wishes are met in terms of providing for that loved one.
Where someone dies intestate, the personal representatives are determined by the Non-Contentious Probate Rules 1987. This may mean that the people who you feel are best placed to deal with your Estate are not actually entitled to do so. By making a Will you can avoid the situation where someone who is unable or unwilling to deal with matters is left with that responsibility.
Making a Will can save time, trouble, expense and delay. Dealing with an Estate during bereavement is always a difficult task. Having a Will in place outlining the deceased’s wishes can assist greatly. Making a Will may also prevent or reduce arguments within the family as to who should have what.
Making a Will can be important where someone has re-married and has children from their first marriage. Whilst wanting the new spouse to benefit from their Estate, they may also want to make provision for the children of the first marriage. Having an agreement with your spouse to benefit those children is all very well - but it is no guarantee since anyone can change their Will at any time.
Perhaps a convenient place to write down your funeral wishes or disposal of your body is in your Will. You may wish to specify whether you want to be buried, cremated or that you wish to leave your body to medical science etc. Whilst these directions are not binding you can make your wishes known to friends and family.
In some cases where someone dies leaving no family their Estate will go to the Crown if a Will has not been made. Where you have no family members, you may rather leave your Estate to friends or to charity than for your estate to pass to the Crown.
Even for those people who already have a Will it is important to keep it up to date. A Will should be reviewed periodically and especially when personal circumstances change. For example getting married will revoke your Will and the effect will be as if you died without having made a Will; you may have separated from your spouse or civil partner but are not yet divorced or you may have had more children since you made your Will.
“Homemade Wills” can have disastrous effects. Your intentions may be impeded if the Will is not drawn up in accordance with the correct legal formalities. It follows that the people left to deal with your Estate will then be faced with additional difficulties, delays and expense.
Making a Will is not as difficult as people sometimes think - in most instances it is a fairly straightforward and inexpensive procedure. So to avoid the State deciding who inherits your Estate or leaving your co-habitee in potentially serious financial hardship please contact us to discuss your Will requirements.
Andrea Jones
Trainee Solicitor
