why make a will
INTRODUCTION
We know that death (like taxes) is inevitable. Almost as inevitable is the fact that when you die, you leave many things behind:
  • your belongings – all those things you have accumulated throughout your life, ranging from “bits and pieces” in your home, to your home itself, bank accounts, investments, and possibly a business;
  • your debts and liabilities – few of us die without owing somebody something, whether it’s unpaid council tax, an outstanding credit-card bill, or a mortgage;
  • most importantly, you will leave behind your friends and family, many of whom you will wish to remember, if not provide for.

Making a Will is the only way to ensure that your estate is properly wound up by people of your own choice, and distributed amongst your friends and family according to your specific wishes.

WHAT HAPPENS IF I DON’T MAKE A WILL?
Failing to make a Will impacts your estate after your death in two main ways:

(a) it affects the manner in which your estate is distributed; and

(b) it affects the manner in which your estate is administered (wound up).

A. THE DISTRIBUTION OF YOUR ESTATE
It is generally – and often wrongly – assumed that if you die without a Will (“intestate”), the law will somehow provide properly and adequately for your loved ones. This is not always the case.

The rules which apply (“intestacy” laws) operate to distribute your belongings amongst your closest family members. This depends on whether you were married or single when you died, as well as whether you left children behind.

Essentially, if you are married with children, your entire estate will be divided amongst them only (and then, only to the extent that it’s worth more than £125,000 – estates worth that amount or less pass entirely to the spouse).

If you don’t leave children, the law will benefit your spouse first, then parents; only if you don’t have parents can your siblings benefit. Siblings “of the whole blood” take preference to those “of the half blood”, who in turn take preference to grandparents.

If you die without family, your estate will pass to the Crown.

If you die without a Will, the law determines who gets what, and in what amount. Non-family members – including an unmarried partner – have no automatic right to a share of your estate.

B. THE ADMINISTRATION OF YOUR ESTATE
Generally, an estate cannot be administered until the deceased’s personal representatives (“PRs”) have applied for a Grant of Administration from the State. The Grant is a document certifying that the named bearer is entitled to gather in the deceased’s assets, pay any bills and distribute the remainder.

Thus, the proper and efficient administration of your estate will depend upon your PRs.

As well as distributing your estate, a Will allows you to nominate your own choice of PRs (known as “Executors”, if appointed by a Will). If you have no Will, and thus have not specifically appointed PRs, the law determines who is responsible for winding up your estate.

Essentially, those relatives who are entitled to a share in your estate under the intestacy laws (and who are over 18) will be entitled to apply for the Grant.

Often, the person entitled will not want the responsibility, or may not be competent to carry out the duties. It is also worth bearing in mind that winding up your estate might be an unwelcome burden for grieving relatives.

By making a Will and nominating Executors, you have the assurance that you have appointed people you trust, who are willing and competent to deal with your estate in the manner you chose.


C. OTHER CONSIDERATIONS
As well as directing how to distribute your estate, and who will be responsible for such, you can draft your Will so as to contain other specific stipulations, including:

Guardians
If you have children, you will naturally be concerned as to who will look after them in the event that they are left without parents. It is common in Wills to nominate a close friend or relative who is happy to act as a guardian for your children in this eventuality.

Disposal of Your Body
You might have a specific request regarding the manner in which your body should be disposed of after your death – by burial, cremation, left to medical / scientific research etc. Again, a short clause in a Will can provide for any particular wishes you might have.

Gifts to Charity
Many people wish to make a gift to a particular charity upon their death. However, the intestacy laws make no proviso for this. If you want a charity to benefit after your death, you will need to make a Will to do it.

DO I NEED TO INSTRUCT A SOLICITOR TO PREPARE MY WILL?
No – a Will does not have to be professionally drafted to be valid. However, despite what the manufacturers of mass-produced “Wills Packets” might lead you to believe, Wills are best prepared by professionals.

Instructing a professional to draft a Will is a means of ensuring:

  • that the Will is validly executed;
  • that the Will reflects, and will operate to reflect, your exact wishes;
  • that your beneficiaries will have a right of redress if it transpires that the document is invalid, or incorrect; and
  • that any inheritance tax issues have been brought to your attention.

An experienced professional instructed to prepare your Will should request a vast array of information from you, some of which might seem irrelevant. This is, in the first instance, so that the completed will addresses all matters which might be applicable to you, and to ensure that it covers all possible eventualities.

In addition, the information you provide will give a specialist practitioner a thorough understanding of your affairs, so that s/he can, if appropriate, provide you with relevant tax advice.

Many people assume that their estate does not require tax planning. However, you cannot be sure that this is the case until you present your affairs to a professional.

FURTHER INFORMATION
Making a Will is one of the most sensible and thoughtful things you can do for your loved ones. We appreciate however that it can also be a stressful and time-consuming process.

If you think you need a Will, but are unsure how to proceed or have any queries, please feel free to contact us, either through our website or in person. Our specialist practitioners will be happy to advise you on any matter.


© Clegg Manuel 2008
 

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