16 Apr Why make a will?
Thinking about your and/or your partner’s demise is not something we like to do. In fact, in my experience, lots of us try and avoid thinking about our death as far as possible. So, it’s not a surprise that when we suggest that clients should review their wills or have wills drafted it’s not one of the most popular post meeting action points. Everyone agrees to consider doing it, but don’t always actually do it.
However, if you’re striving to be more financially organised and have a financial plan for meeting your objectives, then surely it make sense to leave your assets and possessions in as organised away as you can and according to your wishes.
Despite the negative connotations associated with drafting a will (since it only becomes effective when you die), the outcomes can be very positive.
Having a will can ease the burden on whoever ends up sorting out your assets when you die. This generally falls to family and/or friends and can be a stressful and lengthy process, so the easier you make this the better for them. Having been an executor myself, it’s a lot easier if you know the wishes and intentions of the individual who’s died.
If there’s no record of how you intend your assets to be distributed, they will be shared according to the law of intestacy, which might not be what you would want and might not distribute assets to your chosen surviving family or friends. It’s a popular misconception that the law of intestacy will do what you want anyway, especially if you have children. If you have a spouse or civil partner and children, your spouse/civil partner receives the first £250,000 of your estate, your personal chattels and half of your remaining estate outright. Your children receive the remaining half of your estate at age 18. You might not want your children to receive anything at age 18, your spouse might need more funds or you want to leave specific assets to other people.
A will allows you to appoint executors and trustees of your choosing, rather than a relative or friend who is willing and able to sort out the estate applying for a ‘grant of letters of administration’ under the law of intestacy. Additional powers for the trustees can be included in a will which might be suitable for what you want to achieve.
A will has more flexibility than intestacy and can be used to make more varied and complex arrangements depending on your assets and wishes.
It can also be used to facilitate a reduction in any inheritance tax (IHT) that your estate might have to pay. It can ensure that your nil rate IHT band is used effectively and paid from the part of your estate that you want. The residential nil rate band requires your main residence to be left to a direct descendant and a will, properly drafted, can ensure that this occurs, and the additional band is used correctly.
Having an up to date will, and possibly an accompanying letter of wishes, can reduce the likelihood of arguments between those that are entitled, or believe themselves to be entitled, to your assets. If your wishes are clearly expressed in your will and/or a letter of wishes, then it’s harder for anyone to argue that they are entitled and that the provisions aren’t what you wanted.
Another important part of a will if you have young children is the fact that you can specify who should look after your children should you die while they are still under the age of 18. You specify in your will who you want to be appointed as guardians of your children so that in the event of both parents dying, the person or persons you want to look after them are clear. You could also consider a letter to the guardians to be opened with your will which gives them details of any wishes you have for how your children are educated or bought up.
Wills are also important if you want to protect some or all of your assets from unforeseen circumstances and/or you want to provide for vulnerable or disabled dependents.
Having made the decision to review or draft a will it’s important to consider what you should include in your will? The following are areas to give some thought to before approaching a legal adviser for advice on drafting your will.
- What would you like to happen to your entire estate; this includes your home, other properties, business assets, savings, insurance policies, pension funds, investments, vehicles, jewellery, furniture and household contents?
- The individuals, groups or other entities to which you would like to distribute a share of your assets when you die.
- Any other things that you would like to happen after you die, such as wishes in relation to your children and/or spouse.
- The identity of the one or more individuals to whom you are entrusting the execution of your will.
- Don’t forget to consider your digital assets.
It’s also important to note that at the beginning of the will it should say that this will revokes all others. An exception to this would be if you have other wills in relation to specific assets (such as those in other jurisdictions, which might need to be covered by a separate will). A legal adviser would therefore need to know about any overseas assets you have and if you have any other wills.
I suggest that everyone considers drafting a will and the starting point, after organising your current financial affairs, is to consider the points above and talk to your spouse or civil partner about their wishes and concerns. You’ll then be in a position to speak to a legal adviser who can advise you on how best to draft your wills to achieve what you want. There will be professional fees involved in doing this but compared to the potential problems and issues of not having a will these one off costs are, in my opinion, a small price to pay.
Try not to focus on the negative aspects of a will and think of it as just another tool to ensure your affairs are organised and the positive ways you can assist those people you want to benefit.
Please note that Bloomsbury does not give legal advice and any comments or observations are merely to provide general guidance. If you are confused about what to do next or would like to create a will, we suggest obtaining legal advice from a qualified legal adviser.