A Will is one of those things that everyone should have, yet 65% of adults in Britain have not made a Will.
However an individual approaches the task of thinking about what will happen after their death, there can be little doubt that all share a common desire to ensure that the estate (all their assets) which they have worked so hard to build up will pass to those relatives, friends or charities dearest to them. Why then do so many people underestimate the importance of making a Will to ensure that their wishes actually become a reality?
Where a person dies without having a valid Will their estate will be divided in accordance with the intestacy rules, a set of laws that control what happens to that person’s property. Whether a particular person benefits under these rules is dependant upon their relationship to the deceased. The general principle is that the estate will be shared by those individuals who are most closely related to the deceased to the exclusion of any relatives further removed. For example, spouses and civil partners (that is same sex couples who have registered their civil partnership) are the first category of relative to benefit, then children, then remoter issue, then parents and so on.
That being said, under the intestacy rules a surviving spouse or civil partner is not always guaranteed to benefit from the entire estate of their deceased partner, and may, if the estate is above a certain value, find themselves in certain circumstances having to share the estate with the children or parents or brothers and sisters or even nieces and nephews of the deceased. Equally, an estranged spouse or civil partner may benefit from some or all of the estate if they were not actually divorced from the deceased, or if their civil partnership had not been legally dissolved.
The intestacy rules make no provision for friends of the deceased, or for people who may have been financially dependent on the deceased but not related to them by blood. Additionally, they do not give special rights to any vulnerable or disabled members of the deceased’s family.
Perhaps most significantly, the intestacy rules make no provision for the deceased’s partner where the couple were not married or not in a registered civil partnership at the time of death, meaning a surviving partner could potentially find themselves receiving nothing from the estate even in circumstances where the couple had lived together for many years.
Ultimately, where a person dies leaving no spouse, civil partner or blood relatives the intestacy rules would operate so as to pass their estate to the Crown.
By making a Will a person can leave their estate to individuals or organisations of their choice and avoid the application of the intestacy rules.
A Will can also be used to facilitate a number of other different wishes.
Where young people or children are to be beneficiaries of an estate a Will allows a testator (the person making the will) to attach a condition that the money cannot be paid until that child or young person has attained a specified age, for example 21. Under the intestacy rules the beneficiaries would automatically become entitled to their share of the estate at age 18. Making a Will also provides the parents of minor children with an opportunity to appoint legal guardians of those children in the event of their deaths, helping to avoid any uncertainty as to who will look after and provide for children and dependants should the worst happen.
A testator can leave specific gifts of personal possessions as mementos for family or friends, or give small cash gifts perhaps to grandchildren or to close friends in recognition of their kindness.
Funeral wishes can be included in a Will. Although not legally binding such wishes act as useful guidance for the executors of the estate, who have responsibility for making the funeral arrangements.
Wills can also be used for inheritance tax planning purposes, and advice should be sought as to the various options available.
The importance of having a valid Will in place should not be underestimated. If you would like to make a Will or would like further advice on effective contingency plans for your future please contact Alice Clewes on 0191 232 8345 or email: Alice.Clewes@hay-kilner.co.uk
This article is not legal advice; it is intended to provide information of general interest about current legal issues. Please contact us to discuss how the contents of the article may affect you.