Why Make a Will

Date Added: 01 July 2009

This article looks at the importance of a valid Will, what happens if you do not have a will, what to do if you feel you have not received reasonable financial provision, inheritance tax and why you should use a solicitor to draft your Will

The importance of a valid Will
A well drafted Will is an essential and powerful planning instrument enabling you to provide for the future. A properly drawn Will can give peace of mind by allowing you to do the following

• Protect your family by making provisions to cater for their future and individual financial needs
• Allow a partner to inherit who would not automatically do so if no Will was in place
• Reduce taxes that might diminish the size of your estate ensuring that you do not pay more than is strictly necessary
• Appoint a skilled executor capable of carrying out your wishes
• Specify a trusted guardian to look after your children
• Make specific gifts to members of your family to cater for their individual needs. This could include, for example, giving business assets to one child and an equivalent financial share of your estate to the others
• Allow gifts to charities of your choosing
• Establish trusts to delay the distribution of your assets until a determined date, for example, until a child reaches the age of 25

If you don’t have a Will, who inherits?
If you don't have a Will there are set rules for deciding who inherits your assets which depend on your personal circumstances. The following rules apply to deaths on or after 1 February 2009 in England and Wales.

If you're married or in a civil partnership and there are no children.

The surviving spouse or civil partner won't automatically get everything; they will receive the following:

• personal items, such as household articles and vehicles, (although nothing used for business purposes)
• £400,000 free of tax, or the whole estate if it is less than £400,000
• half of the rest of the estate

The other half of the rest of your estate will be shared by the following

• surviving parents
• if there are no surviving parents, any brothers and sisters (who share the same two parents as you) will get a share (or their children if they have died while you were still alive)
• if you have none of the above, your husband, wife or registered civil partner will get everything

If you are partners but are not married or in a civil partnership

If you aren't married or registered civil partners, you won't automatically get a share of your partner's estate if they die without making a Will.

If they haven't provided for you in some other way, your only option is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. (See section 4 below 'If you feel you've not received reasonable financial provision'.)

If there is no surviving spouse/civil partner, the estate is distributed as follows:

• to surviving children in equal shares (or to their children if they have died while you were still alive)
• if there are no children, to parents (equally, if both alive)
• if there are no surviving parents, to brothers and sisters (who shared the same two parents as you), or to their children if they died while you were still alive
• if there are no brothers or sisters then to half brothers or sisters (or to their children if they died while you were still alive)
• if none of the above then to grandparents (equally if more than one)
• if there are no grandparents to aunts and uncles (or their children if they died while you were still alive)
• if none of the above, then to half uncles or aunts (or their children if they died while you were still alive)
• Finally, to the Crown if there are none of the above

It'll take longer to sort out your affairs if you don't have a Will. This could mean extra distress for your relatives and dependants if there is a long wait before they can draw money from your estate.

If you feel that you have not received reasonable financial provision

If you feel that you have not received reasonable financial provision then you may be able to make a claim for relief under the (Provision for Family and Dependants) Act 1975, applicable in England and Wales.

The rules are fairly onerous and in order to make a claim you must prove the following

• That you have a particular type of relationship with the deceased, such as child, spouse, civil partner, dependant or cohabitee
• That you have been 'maintained either wholly or partly by the deceased’, this can be difficult to prove if you have jointly made contributions to your lives.

There is a time limit of 6 months from the Grant of Administration (Probate) within which claims for relief must be received. This is quite a complex area and claims may not be succesful. If you require further assistance, then please do not hesitate to contact a member of our firm using the contact details contained at the top and bottom of this article.

Transfer of nil rate band
Where one party to a marriage or civil partnership dies and does not use up all of their nil rate band on making tax free bequests to other members of the family, the unused amount can be transferred and used by the survivor’s estate on their death, e.g. if they used none of their nil rate band, the surviving spouse would have double the nil rate band tax free (currently therefore £650,000).

This is only applicable where the survivor died on or after 9 October 2007.

Who pays Inheritance Tax
The 'personal representative' (the person appointed to handle the affairs of the deceased person) arranges to pay any Inheritance Tax that is due.

Personal representatives are usually nominated in your Will (you can nominate more than one), in which case they are known as the 'executor'.

Deadline for paying Inheritance Tax
In most cases, Inheritance Tax must be paid within six months starting from the end of the month in which the death occurred; otherwise interest is charged on the amount owing. Tax on some assets, however, including land and buildings, can be deferred and paid by instalments over a 10 year period.

Why you should use a solicitor to draft your Will
If you wish to make a Will yourself, you can do so. However, you should only consider doing this if the Will is going to be straightforward.

It is more advisable to use a solicitor or at the very least have a solicitor check a Will you have drafted to make sure it will have the desired effect. It is easy to make mistakes and, if the errors go unnoticed, this can cause problems after your death. Sorting out misunderstandings and disputes after death can result in considerable legal costs, which will reduce the amount of money in the estate to go to those benefiting from it.

Some common mistakes in making a Will are

• Being unaware of the formal requirements needed to make a Will legally valid
• Not accounting for all the money and property available
• Not making provisions for the possibility of beneficiaries predeceasing the person making the Will
• Making changes to the Will without having them signed and witnessed; The Will is invalid if this procedure is not followed.
• Being unaware of the effect of marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a Will
• Not being aware of the rules enabling dependants to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the Will could be overturned (please see above at point 4).

In certain circumstances it is particularly advisable to use a solicitor. The following are the most prominent

• Where you share a property with someone who is not your husband, wife or civil partner
• Where you wish to make specific provision for a dependant who is unable to care for themselves
• Where there are several family members who may make a claim on the Will, for example, a second wife or children from a first marriage
• Where your permanent home is not in the United Kingdom
• If you are not a British citizen
• If you own overseas properties
• If there is a business or agricultural property involved.

If you would like to speak to a member of our team regarding your Wills or inheritance matters, please visit the “Wills & Probate” section of our website.

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