Benjamin Franklin famously said that “Nothing is certain except death and taxes” and yet it would appear that approximately two thirds of the British adult population have not yet prepared for the inevitable and do not have a Will. Our partners at Rix & Kay explain the importance of writing a Will here.
The Basics about Wills
A Will is legal document that gives a person the opportunity to confirm how they wish for their estate to be dealt with after their death. A Will can be made by any person over the age of 18 who has the requisite capacity (testamentary capacity) to understand:
- What a Will is and what it does.
- The extent of their estate that they are passing on to their beneficiaries.
- Understand and appreciate the moral and/or legal obligations that they may have to certain people.
- Have no disorder of the mind that alters their understanding of any of the above.
If there is any concern about any of the above, or there is a possibility that a Will has been made as a result of undue pressure and/or influence from another person, then it is possible that the Will could be challenged after a person’s death on the basis that it is not a valid document.
What you can leave in a Will
Under a Will, you can make various types of gifts:
- A specific legacy – a gift of a specific property, asset or personal belongings e.g. your car or jewellery.
- A pecuniary legacy – a set sum of money e.g. £1,000.
- A share of the residuary estate – for example “50% of my residuary estate” will mean 50% of all of the assets that pass under a person’s Will, after the payment of any legacies, debts and taxes.
Other benefits of leaving a Will
In addition to making straightforward gifts (often referred to as absolute gifts), a Will also enables a person to:
- Express their funeral wishes (although at present these are not legally binding).
- Appoint guardians for minor children.
- Appoint Executors – the people who will be responsible for giving effect to the wishes set out in the Will, paying any taxes (including Inheritance Tax, Capital Gains Tax and Income Tax) and ensuring that their estate is administered in accordance with the law.
- Create Trusts which can be used, for example, to safeguard assets for children/grandchildren or give your spouse or partner the right to live in a property after your death.
- Appoint Trustees – the people who will administer any ongoing trusts in the Will.
Dying without a Will
We all know that death is something each and every one of us will face one day, so what happens if you or your loved one dies without making a Will? Their estate will pass in accordance with the Intestacy Rules. The Intestacy Rules set out who will benefit in the event of your death and it is not uncommon for problems to arise when the Intestacy Rules are relied on.
A common issue with the Intestacy Rules is that unmarried partners, including a partner that co-habits with you, will not be entitled to receive any benefit from your estate. Also, step-children/step-grandchildren will not benefit – which can be an issue for couples who have children from previous relationships, particularly if their combined estate has passed to the survivor of them as the estate will only pass to the survivor’s children.
Considerations about making a Will
Ultimately, if you want to be certain that your estate will pass to the people that matter most to you then the advice has to be that you should make a Will. Whilst it is possible to make your own Will without help from a legal professional, there are lots of additional things to consider which could affect the validity of your Will or the distribution of your estate. Some of those considerations will include:
- Joint property or assets, which will usually pass to the surviving owner. A common exception to this rule is when people own land in their joint names as tenants in common.
- Inheritance Tax – it is possible to save Inheritance Tax with some careful planning and by ensuring that you utilise all the Inheritance Tax allowances and exemptions available to you.
- Assets held in trust, such as life insurance policies or pension benefits.
- Ensuring that the words used in your Will clearly set out your wishes and do not cause there to be any ambiguity. Where ambiguity occurs, it may be necessary for your Executors to apply to the Court for directions on how the estate should be distributed, which can be costly and time consuming.
- Care fees considerations, particularly if your spouse or partner is already needs or is likely to need care in the future.
- Possible claims from certain relatives or people who are financially dependant upon you under the Inheritance (Provision for Family and Dependants) Act 1975.
- Ensuring that the Will is executed (signed) in accordance with s9 Wills Act 1837 and is a valid document.
Want to know more?
A Will is an important document and it can provide you with peace of mind to know that a qualified professional has guided you through the process. If you would like further information regarding Rix & Kay’s bespoke Will Writing Service then please contact Amanda Attrell on 01273 766928 or email her at [email protected]
