I am continually surprised when I talk to friends and acquaintances to find out that a large number of them do not have a current will. This is even more surprising when you consider that most of them own at least one property and have one or more children.
Many will admit that a will is on their 'To Do List' but others simply shrug off my surprise, saying that they don't have any thing worth leaving. Other simply don't want to discuss the 'inevitable'.
Someone famous once said that there are only two things that are certain in life, “death and taxes”. In the context of wills, these two things are in fact closely linked.
Death is inevitable for all of us and yet according to the Office of National Statistics approximately 60% of people in the UK die intestate (without a will). Some of these intestacies will arise from a badly (probably not professionally) drafted will, but the vast majority will result where there was no will at all.
So many people work all their lives to build up their wealth, large or small, only to let the law arbitrarily decide where that wealth ends up. Many people will happily buy a lottery ticket every week with a chance of one in a million (or 13 million to be exact) of winning, but will not put making a will further up their “to do” list when we all know, the odds of dying are 100 per cent! Having a will really does make a difference to those left behind - here are some reasons why;
- To retain control - If you die intestate, depending on your personal circumstances, the law stipulates which family members inherit your estate. You may think that the intestacy provisions bring about the division of assets you would want, but what if for example your spouse or civil partner who benefits under your intestacy remarries and goes on to leave their inheritance from you to their new spouse or civil partner? This is not something everyone is happy with. A carefully drafted will can enable you to retain control of your estate and ensure that your children and grandchildren will be the ultimate beneficiaries of your estate, no matter who dies first.
- To appoint a guardian - whilst is it not strictly necessary to appoint a guardian for your children in a will, it is a very good place to do it. A clear direction will avoid a potential dispute over what you would have wanted. Where one parent is deceased, the need to appoint a guardian becomes even more important.
- To make provision for an unmarried partner – the intestacy rules only deal with biological family. There is a prescribed list of beneficiaries and essentially your estate is divided between the closest blood relatives who survive you. If you are not married to your partner they will receive nothing under these provisions.
- To appoint executors - You wouldn’t let someone you hardly knew, or someone with no experience handle your financial affairs while you are alive, so why would you want this to happen when you are dead? In a will you can appoint the people you trust to administer your estate. Without a will, those entitled under the intestacy rules are able to apply to the Probate Registry to administer your estate, and they might not always be the best candidates.
- To save inheritance tax – When making a will you can take advice on any potential tax planning measures.
- To make gifts to charity – Many people would like the opportunity to leave something to their favourite charity when they die, but the intestacy rules do not allow for this. Gifts to charity are also exempt from inheritance tax so it is a way to save on tax as well.
- To plan for the unexpected – Some people have particularly complicated family circumstances that mean that whilst they might wish to leave some of their estate to one person, they are concerned about the potential consequences. This might apply to a beneficiary reliant on state benefits, dependent on drugs or alcohol, mentally ill, bankrupt or not good with money or perhaps going through a divorce. A possible solution is a will that contains a discretionary trust. This allows trustees (appointed by you), to make decisions about who should benefit and when, guided by a letter of wishes written by you, that can amended any number of times (without any need to amend the will) as circumstances change or evolve. The trustees are in a better position after your death to assess the status quo and make sure that your wishes are carried out without triggering any of the unwanted consequences you fear.
- To specify what happens to your body – Some people have strong views about whether they are to be buried or cremated, or their body donated to a hospital for the purposes of medical research.
- To avoid further distress for your family – when a loved one dies it is devastating for everyone concerned and this situation can be made worse when there is no will. An unmarried partner might wrongly assume they will inherit everything as next of kin, only to be advised that they will receive nothing. A spouse may be concerned to find that s/he only receives part of the estate but needs more than this to be financially stable. It can cause arguments between different parts of the family with everyone professing to know what the loved one would have wanted. A will can avoid much of this as it is a clear statement of your intentions.
- For those who actually do already have a will, it is important that it is reviewed at regular intervals. Particularly if there has been a significant life event such as the birth of a child or grandchild. If you marry or divorce you should always review your will as marriage completely revokes a will, (unless the will was made in contemplation of that marriage), and divorce treats the ex-spouse or civil partner as dead from the date of decree absolute, so any gift to them fails.
Hopefully I have given you some food for thought. There are no real excuses as even those who profess “I have nothing to leave”, may have that elusive lottery win or other windfall and then die unexpectedly soon afterwards (we are a cheery lot in this area legal practice!).