Why Make a Will?
Many people believe they know what will happen with their estate when they die and put off making a will believing that it will be too expensive to do, their estate is too small or they are not old enough. This leaflet addresses the reasons why you should contemplate making a will.
If you die without having made a will the intestacy rules will apply to your estate.
If you die leaving a spouse/civil partner (“Spouse”) and children, your Spouse will receive your personal possessions and £250,000, the rest will be divided into two, half on trust for your children for when they are 18, the other half for your Spouse. Could your Spouse survive on half the capital? Would the children end up owning a share of the marital house with the risk that it would be an asset of theirs if they divorced or went bankrupt or just wanted to sell it. Would you want your children to have access to the capital at 18? A will could allow your executors to apply the capital and income for your children but stop them getting unrestricted access to it until they are an age you think appropriate.
If you die leaving a Spouse he or she would receive all your estate with nothing going to your family, friends or any charities you may support. You would not be able to leave specific gifts and mementos to others.
If you cohabit with someone: Your co-habitee does not benefit under the intestacy rules and has no automatic right to your estate. If you die without making a will your estate will pass to your children and, if you have none, to your parents or siblings. Your partner would have to sue your estate claiming financial dependence if appropriate and if you have children, both your children and partner would have to have separate legal representation – an expensive and drawn out affair at a time when your family should be focussed on dealing with their loss. You could avoid this by making a will.
The danger of homemade wills: A homemade will should only be made in the most straightforward of circumstances. We regularly deal with the fallout from homemade wills which do not deal with the estate as the deceased truly wished. Sometimes the estate will pass to the very people the deceased did not want to inherit.
Executors: Your will appoints executors who will be responsible for dealing with your estate and any trust that arises. These should be business-minded family or friends and/or professional advisors. The executors can instruct professionals to deal with the estate but they need to be able to make decisions.
Your children: You can appoint guardians for your minor children in the event both you and their other parent have died.
Charities: You can benefit good causes free from inheritance tax and, if your estate is large, you may be able to benefit from a reduced rate of IHT.
Your personal effects: You can set out how you would like them to be distributed or if you prefer we can include a clause leaving them to your executors to distribute with any letter of wishes you leave –that way you do not have to rewrite your will if you want to alter your letter of wishes.
Simplifying Nil Rate Band Trusts: The nil rate band (“NRB”) is the figure on which no inheritance tax is payable (currently £325,000). Anything above the allowance is subject to 40% tax. Prior to 2007 you had to use your allowance or lose it i.e. a spouse should not leave the tax free sum to the surviving spouse as when they died the widow(er) would only have their own NRB, wasting the first to die’s allowance. To avoid this people often made complex NRB discretionary will trusts or left assets away from the spouse. Since 2007 a surviving Spouse acquires what remains of the first to die’s NRB i.e. the widow(er) could have up to two NRBs (currently £650,000). We recommend that couples with NRB will trusts take professional advice on whether to alter their wills. There may be good reasons for leaving them in place but removing them can make administration of your estate easier and cheaper.
Flexibility for modern families: You may have children from a previous marriage. A will trust can provide your new Spouse with security whilst ensuring your assets eventually pass to your children.
Asset protection: You can leave your share in the family home in a will trust which can shelter it from residential care costs whilst allowing your Spouse/partner to reside in the house. This trust can be drafted flexibly to allow the survivor to move home.
Tax Planning and lifetime giving: We can assist you in planning the most tax effective way to leave your estate and advise you on ways to make life time gifts including potentially exempt transfers which ceases to be taxable after 7 years if properly given. We recommend seeking professional advice as this must be done properly or it may give rise to unexpected tax consequences.
Businesses: There is an important IHT relief for business interests and agricultural interests. We can advise on the best way to take advantage of these reliefs.
Making a will need not be expensive and could save your loved ones stress, worry and expense at a time when they are grieving your loss.
Disclaimer: This article is designed to provide you with a brief understanding of wills. It is not to be treated as a substitute for getting full and specific advice from a specialist lawyer