Our key legal partner, Ashtons Legal, which has offices in Norwich as well as across Suffolk and Cambridgeshire, offers this advice on the subject of writing a Will:
Around two thirds of adults in the UK do not have a current Will, and many of them are probably unaware of the implications of dying unexpectedly without one, and their estate being subject to the ‘intestacy’ rules.
For many of us writing a will is the last thing we want to do or talk about, but it is clinically proven that writing a will does not bring forward death! So – if your parents haven’t yet made a will, or if you or your family don’t know what is in their wills, it is suggested that you try and start the conversations. One of the most important reasons to write a will is to ensure that wishes, particularly with regard to any care, can be met and funded when the time comes.
Key considerations when writing a will:
• Take into account all the money, property and other assets available when writing a will
• The possibility that a beneficiary might die before the person making the will;
• For a will to be valid it must be signed by the author/originator and by 2 witnesses
• At least one (ideally 2) Executor should be appointed
• Whilst a solicitor isn’t required to write a will, it’s worth taking advice to ensure the will is interpreted when executed in the way that the originator wished (particularly if written without expert help)
• Use a codicil to add changes to a will; for major changes, make a new will which explains that it revokes all previous wills and codicils. Destroy the old will to avoid any confusion.
• Put it in a safe place – either at home or with the bank/solicitor or companies that store wills – and be sure to tell the executors where it is.
What happens if you don’t make a will?
Under the rules, if the estate is likely to be worth more than £250,000, the husband, wife or civil partner keeps all the assets (including property), up to £250,000, and all the personal possessions, whatever their value. The remainder of the estate will be shared as follows: the husband, wife or civil partner gets an absolute interest in half of the remainder; and the other half is then divided equally between the surviving children (or grandchildren if a child has predeceased their parent). If the estate is likely to be worth less than £250,000, the husband, wife, or civil partner gets all of the estate. However, a surviving partner who wasn’t married or in a civil partnership with the deceased has no automatic right to inherit.
Important reasons for writing a will
Why your parent might need to make a Will depends on their circumstances, but one reason might be to help protect their assets after their death should their surviving spouse need long-term care that needs to be paid for. This can be achieved by establishing a Trust under the Will.
Although changes to the rules concerning the Nil Rate Band (otherwise known as the Inheritance Tax threshold) in 2007 made it easier for some married couples to pass on their assets without paying tax, those with complex family circumstances, or assets including their home totalling more than their combined NRBs should certainly seek advice. The current Inheritance Tax threshold, until April 5 2017, is £325,000.
Ultimately, making a Will means everyone can be clear about what a parent’s wishes are. Making a will also help sort out how any care could be funded should it become necessary. Unfortunately, where people die without a Will to clarify their intentions, family feuds are more common than one might expect. This is particularly the case where one or both spouses have had more than one marriage and there is extended family to consider.
Probate and Dying Intestate
Probate is required when assets of a dead person are worth more than £5,000 and/or when a property is held in sole or joint ownership. Essentially probate involves collecting all the assets, settling all the debts and tax liabilities and correctly distributing the remainder of the estate to the beneficiaries in accordance with the Will, or Rules of Intestacy.
If there is a will, it should name one or more executors who will administer the estate. In order to do this, executors may need to apply to The Probate registry for a grant of probate. If there is no will – dying intestate – an application for a grant of letters of administration will need to be made, issued by the court, which allows administrators to be appointed to administer the estate.
The administrator (or personal representative) will usually be a close relative of the person who has died. Who the administrator is will be determined by a set order of priority which a solicitor can advise on.
Further details on intestacy rules can be found at Direct Gov but the underlying message is simple – to retain control of your own assets, have the opportunity for tax planning, and minimise the potential stress for loved ones – your mum or dad should ensure that they have a valid Will at all times.
It is possible to write your own will? There are organisations offering Will writing services. However, many of these do not have legally trained staff. Many home-made Wills fail each year because they have not been prepared or completed correctly. The cost and stress of resolving these situations far outweighs the cost of doing it correctly in the first place.