Simply put, a last Will and testament (which is a legally binding document) is needed to ensure that after your death, specific assets, money and possessions go to the particular people and/or organisations you choose. These will include children and other family or friends you want to support and and any charitable donations you may want to make.

Wills, estate planning and inheritance tax planning more broadly, are sensitive subjects for most households across the UK and they’re often thought of as a slightly taboo topic.

Many people put off making a will because they either don’t like thinking about or talking about death or they assume that their personal possessions will automatically go to their loved ones. However, dying without a will can cause a lot of headaches for your family and loved ones, may lead to family disputes and matters may not be handled in accordance with your final wishes.

Having a discussion and putting a will in place is the only way to make sure your money and possessions that form your estate, go to the people and causes that you care about.

Also one of the main reasons for drawing up a will is to mitigate a potential inheritance tax liability, which could be substantial with the amount of assets people own these days.

At What Age Should You Make A Will?

In the UK, anyone over the age of 18 can make a Will and as soon as you have some assets you wish to leave to specific individuals you should make one.

The global COVID pandemic has focused minds and given us space to think and it seems that it’s prompted more people to take action.

From making changes to existing Wills, to encouraging them to think about writing one for the first time, or putting in place Lasting Powers of Attorney.

die without a will

But worryingly, according to research by Canada Life, 59% of UK adults (approx 31 million people) still have not written a Will. As a result, when they die, their money, possessions, property and other assets could be left to beneficiaries they have not chosen..

Not sure how you feel about that, but it doesn’t sit well with me.

Here are some of the shocking stats:

making a will stats

What Happens If You Die Without A Will?

If you die without a valid Will in the UK, you will be dying “intestate” and the distribution of your estate becomes subject to the statutory intestacy rules. This can lead to some unexpected and unfortunate consequences.

For example:

  • Assets you expected to pass entirely to your spouse or registered civil partner, may have to be shared with children

  • Unmarried partners, including same-sex couples who don’t have a registered civil partnership, have no automatic right to inherit if there is no will and may need to go to court to claim for a share of your assets.

  • Step children who haven’t been legally adopted, have no right to inherit under intestacy rules

  • If you are separated but not actually divorced, an ex spouse from a previous marriage or registered civil partner still has rights to inherit from you.

  • Grandchildren or great grandchildren cannot inherit from the estate of an intestate person unless either:

    • their parent or grandparent has died before the intestate person, or
    • their parent is alive when the intestate person dies but dies before reaching the age of 18 without having married or formed a civil partnership
  • Charities and other organizations you may have wanted to support will not receive anything.

  • If you have no close family members, more distant relatives may inherit. These could be long lost cousins or somebody you’ve not even heard of.

  • If there is no will and you have no surviving relatives your estate then passes to the Crown.

For more information, please visit:

https://www.citizensadvice.org.uk/family/death-and-wills/who-can-inherit-if-there-is-no-will-the-rules-of-intestacy

https://www.gov.uk/inherits-someone-dies-without-will

So as you can see, there are a number of situations where the absence of a will could result in the expected beneficiaries of the deceased being disinherited, or left with a substantially smaller proportion of the estate than intended.

Making the only way for an individual to indicate whom they wish to leave their estate and often the only means of ensuring legacies for children of earlier relationships will actually take place. Failure to take action could compromise the long-term financial security of the family and nobody really wants that.

What is Partial Intestacy?

Partial intestacy can happen even when there is a Will in place. For example:

  • When the Will is not valid.
  • When it is valid, but the beneficiaries die before the testator (the person making the Will)

Intestacy can also rise when there is a valid will, but some of the testators assets, we’re not disposed of by the Will. This is called a partial intestacy.

Intestacy therefore arises in all cases where a deceased has failed to dispose of some or all of their assets by a Will hence the need to review a Will when circumstances change, which they do on a regular basis!

How To Get Started Making A Will

Who would you like to manage your estate?

The person or people you choose to manage your estate after you die are known as your executors.

Whilst you legally only need one, you usually appoint at least two (and up to four) and typically your spouse or partner (if you have one) will be an executor.

The executors of a Will are responsible for fulfilling the instructions in the Will. They must be a responsible and trustworthy person who is able to handle both financial and emotional tasks.

Executors are typically family members or a close trusted friend, but they can also be professional executors who are hired to carry out the duties. Professional executors are often used in cases where there is no close family or friend who is willing or able to take on the responsibility. Regardless of who is chosen to be the executor, it is important that they are someone who will act in the best interests of the estate and its beneficiaries.

Without a Will, relatives who inherit under the law will usually be expected to be the executors.

Do you need to appoint a Legal Guardian?

Should you die and have minor children, the guardian becomes responsible for their care and welfare, and will make decisions about their education, health, and other aspects of their lives.

The guardian must follow the wishes of the deceased parent as set out in the Will, and they may also be required to obtain court approval for certain decisions.

Prepare your inventory

What possessions are you likely to have when you die?

Make your list of all the assets, both business and personal. Remember to include things like:

  • Your family home
  • Other property
  • Furniture, household contents
  • Money (bank / building society accounts)
  • Investments / premium bonds / ISAs / shares
  • Life insurance / endowment policy
  • Pension funds
  • Jewellery / antiques
  • Animals

This will help to ensure that everything is accounted for and that everyone who is entitled to receive an inheritance gets what they’re entitled to in accordance with your final wishes.

Please note all debts and the funeral expenses must be paid.

What about jointly owned property and possessions?

Arranging your own property and other assets jointly can be a way of protecting a person’s spouse or registered civil partner.

For example, if someone has a joint bank account, the money passes automatically to the other account holder (it can’t be left to someone else). The a partner will therefore continue to have access to the money they need on a day-to-day living basis without having to wait for the affairs to be sorted out. Because delays can cause financial hardship.

There are two ways that a person can own something jointly with someone else.

1) As tenants in common, or called common owners in Scotland.

Each person has their own direct shares of the assets, which do not have to be equal. They can then state in their Will, who will inherit their share.

2) As joint tenants called joint owners in Scotland.

Individuals jointly own the assets so if they die, the remaining owner automatically inherits their share. A person can not use their Will to leave their share to someone else.

Drawing Up Your Will

Decide how your estate will be distributed

Would you like any family members, friends or charities to receive specific items or sums of money?

You can be as detailed as you wish when you leave instructions in your Will.

Consider what can be done to minimise inheritance tax liabilities

Inheritance tax is a levy that is charged on the estate of a deceased individual. The tax is calculated on the value of the estate, minus any debts and liabilities. It can be a significant financial burden for the beneficiaries of an estate, and it is important to minimise liability where possible.

There are a number of strategies that can be used including:

Each strategy has its own associated risks and benefits, and it is important to seek professional advice to ensure that the best possible outcome is achieved. With careful estate planning, it is possible to minimise the amount of inheritance tax payable on an estate. This can provide significant financial relief for beneficiaries, and help to preserve the value of an estate.

Legal Requirements For A Valid Will

In order for a will to be legally binding, it must meet certain requirements.

1) The Will must be in writing. This means that it cannot be oral or verbal.

2) The Will must be signed by the testator (the individual who is making the Will).

3) The testator must be of sound mind and have the mental capacity to understand the meaning of the Will and the consequences of signing it. Additionally, they must not be under duress or undue influence when signing the Will.

4) The signature must have be witnessed by two other people who are not related to the testator.

5) The two witnesses must also sign the Will.

If these requirements are not met, the Will may still be valid if it can be proven that the testator had intended for it to be their last Will and testament. However, this can often be difficult to prove, so it is always best to make sure that a will meets all legal requirements before it is executed.

Once a will is executed, it cannot be changed except by creating a new Will or through a court-ordered amendment.

Does Having A Will In Place Help The Probate Process?

Probate is the legal process of settling an estate after someone dies.

The process typically involves four steps:

  1. Distributing the deceased person’s assets,
  2. Paying any debts and estate taxes
  3. Resolving any disputed claims
  4. Distributing the remaining assets to the beneficiaries

Although the process can be time-consuming and complicated, it is often necessary in order to ensure that a deceased person’s wishes are carried out correctly. In many cases, probate can be avoided altogether by planning ahead with a trust or other estate planning tools.

Whilst having a Will does not guarantee a smooth probate process, it can certainly help to avoid some common pitfalls and make it easier and quicker for all involved.

What Is A Living Will?

More commonly called an Advance Decision, this type of Will is a legal document that outlines what you would like to happen regarding medical treatment in the event you become terminally ill or lose the ability to make your own medical decisions.

It can cover matters such as whether or not to receive life-sustaining treatment, as well as your preferences for other medical decisions, such as pain management or being an organ donor.

While a living Will is not required by law, it can be a helpful way to ensure that your wishes are carried out if you become incapacitated.

You should discuss your living Will with your family and doctor so that they are aware it exists and can make sure the instructions are followed.

Living Will or Lasting Powers Of Attorney

Living Wills only outline your medical decisions whereas Lasting Powers of Attorney (LPA) cover significantly more.

There are 2 types:

  • A Health & Wealfare LPA
  • A Property and Financial Affairs LPA

For more information about LPAs, please take a look at the following article:
https://ttwealth.co.uk/lasting-powers-of-attorney/

Or, listen to this Lasting Powers of Attorney Estate Planning podcast episode:

In Summary

It’s never too early to start thinking about your Will.

In fact, it’s one of the most important things you can do to protect your loved ones and ensure that your wishes are carried out after you’re gone. The process of creating a Will can seem daunting, but it doesn’t have to be. With a little planning and some helpful advice, you can ensure that your Will is valid and reflects your wishes.

If you need help getting started, then please seek legal advice because it’s so easy to make mistakes. Or if you prefer, you can contact Kinherit who are the legal partners I use for making Wills, Lasting Powers of Attorney and Trusts for my clients, who would be happy to help.

Alternatively for a more general discussion about your estate planning needs, book a free 30 minute call:

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