Making a Will is something that most of us know we should do and yet so many of us don’t or put it off for years often until it’s too late. There are a variety of reasons why people don’t make a Will – some would rather not think about their own mortality, whilst others (especially in these credit crunching times) worry about the cost.
But there are several very important reasons why you should make a Will if you haven’t already done so. The first is that without a Will, the Government steps in and divides everything according to strict rules. This could mean family, friends or charities you wanted to benefit might miss out altogether.
People often mistakenly believe that everything will naturally pass to their partner or spouse on their death, but this is not the case. If you are married and have children, your spouse or partner may not automatically inherit all of your estate. This can create a whole lot of anxiety, grief and financial hardship for those left behind, which could have been avoided had a Will been in place.
The Laws of Intestacy:
The consequences of dying intestate (which is legal jargon for having no will) remain very serious indeed for the loved ones you’ve left behind. The Laws of Intestacy come into force should someone die without a valid Will in place. Simply, this is what the laws state:
Spouse receives all personal effects, household goods and all joint assets. After that they only receive the first £270,000 of their spouse’s estate. The remainder of the estate is split into two halves, the spouse can receive an income from one half, but cannot have any capital. The other half goes straight to any children of the deceased who are over the age of 18, (or is kept in Trust until they reach 18).
This has sometimes resulted in widow(ers) being made homeless because the property was in the spouse’s sole name and it has fallen within the half of the estate that has been passed to the children. Of course within your Will you can state who is to receive what part of your estate and when.
Unfortunately Intestacy laws are years behind modern life, if you are an unmarried couple and one of you dies, the survivor has no automatic rights to your partner’s estate. Furthermore if an unmarried couple has children and the Mother dies, and her partner is not named on the birth certificate (or any other legal document) as the Father, he has no automatic right to be the guardian of his own child(ren). The Mother would have to name her partner as the Guardian of the children in her Will. Also within your Will you can name the people you want to take over parental responsibility for your children should both parents die while the children are still minors. Unless you decide who would look after your children in the event of this happening and state it within your Will. Your children would become Wards of the Court and could be placed with foster parents ultimately it will be the local authority and the courts who decide it for you.
You will also need to appoint Executors and Trustees these are the people who take care of your estate and are duty bound to ensure your wishes laid out in your Will are carried out.
When people consider making a Will, experience has shown me that they will invariably think about leaving everything to their surviving spouse/partner on first death, then on second death to their children. This typical route has a host of hidden dangers which could mean your children/beneficiaries are partially or totally disinherited. For example:
a) If after your death, your spouse/partner re-marries. On their death their new spouse could inherit everything, not your children.
b) If you have children from a previous relationship, after your death your partner could change their Will to disinherit those children and leave everything to his or her own family.
c) If you end up in a care home, your assets can be seized by the local authority to pay for your care.
A properly prepared Will could protect your family from all of the above scenarios.
Furthermore, you may also have specific wishes or situations which may need to be taken into consideration e.g. a disabled child or a beneficiary with acute behavioural problems or addictions. It would be potentially very harmful for these people to benefit directly from your Will but you may not want to disinherit them completely.
By having a Discretionary Trust placed into your Will and the part of your estate you wish to leave to this beneficiary put into this Trust. It would be then at the discretion of your Trustees when and how much this beneficiary receives. This ensures that the beneficiary is not disinherited and they can receive their part of your estate at a rate they can cope with and indeed if you do have a beneficiary with an addiction their inheritance can be withheld until your Trustees are satisfied they are over their addiction.
Estate Planning does not just entail planning for after your death. If because of advancing years, an accident or a serious illness you become mentally incapable, who’s going to handle your finances and pay your bills? What if it becomes desirable to sell your home? Even if your spouse is still alive and well, they do not have an automatic right to do these things for you. A Lasting Power of Attorney (LPA) document ensures all these matters are dealt with and stops the wrong people gaining control of your finances.
Without an LPA in place your assets are frozen and it can take many months and many hundreds of pounds in order for your family to gain access to your assets. Often it is just as important to have an LPA in place as it is to have a Will.