Why is a Will Such a Big Deal?
According to research from Royal London last year, 59% of people do not have a Will or have a Will which is out of date.
This is effectively saying that over 30 million people do not have a Will. Many people believe that their Estate can be easily sorted after their death, however this is rarely the case. Statistics from Probate by Post state that over 60% of the UK population die without having made a Will, which creates increasing uncertainty following the death of a loved one. A further 10% of those who do not leave a Will believe that their Estate will automatically be left to the “right” people when they die.
Who can make a Will?
The first ever Will, dates back to Ancient Greece and, according to Plutarch, it was written and invented by Solon. At the time, a Will was only used by men who were single and without heir, and, despite the passage of time, this idea is fairly similar in principle today. The point of a Will in Ancient Greece times was so that a man could dictate what was to be done with his possessions when he died. The Will was dictated to a scribe, who would write it down on parchment, typically animal skins, and the man would be invited to sign the Will with an assembly watching. However, once it was signed, the Will was locked away until he died and could not be retrieved or edited in any way, meaning its contents had to be followed, even if there had been changes in circumstances.
Nowadays, in order to make a legally valid Will the following criteria must be met:
- the person must be aged 18 years or over;
- they must make it voluntarily;
- they must be of sound mind;
- it must be made in writing;
- it must be signed in the presence of two independent witnesses who are both over the age of 18 years;
- and the two witnesses must sign it in your presence.
A Will can be drawn up by a single person or by a couple (married or unmarried). The terminology often used by Solicitors are “Single Wills” or “Mirror Wills”.
Furthermore, a Will is now a revocable document which means that you can cancel your Will or amend all or part of its contents.
Various issues and questions arise if a Will is not in place when someone dies such as who will become the Guardian of any children, at what age children should inherit large sums of money if they are beneficiaries especially if they cannot handle it sensibly, and what if a family feud arises over property and/or heirlooms.
What is the importance of a Will?
Everyone who owns a house, has children or other assets should make a Will to safeguard the future of their family and loved ones. If you do not leave a Will, your Estate will be divided among your family without regard to your wishes. If you are married, your husband, wife or civil partner will not necessarily inherit all your possessions unless you leave very few assets, have no children, grandchildren, parents, brothers, sisters, nephews or nieces.
If you live with someone but are not married or in a civil partnership (you are cohabiting), your partner will have no automatic right to inherit any of your Estate.
If you have promised to leave items to people during your lifetime, your promises will not be carried out without a Will.
If you die without a Will, there is invariably more delay and expense while enquiries are made to find out who is entitled to a share of your Estate. It may go to the extent of tracing distant relatives which may add to the stress.
What does the term “Estate” mean?
The term “Estate” means everything that you own at the date of your death. This is all of your assets and your liabilities. Many people think this only relates to an actual property made of bricks and mortar, and often referred to as Real Estate. However, it also includes bank accounts, savings, shares, investments as well as personal possessions such as jewellery, clothing and motor vehicles.
It not only includes assets in your sole name, but also assets that you owned with someone else and any assets you had the benefit of during your lifetime.
The Advantages of having a Will
A properly drafted Will avoids problems and allows you to leave your possessions to whoever you want. You can appoint guardians to look after your children and Executors or Trustees who will look after the financial arrangements until the child is old enough to do so.
It is advisable to review the wishes and contents of your Will every five years and after any major changes in your personal circumstances such as marriage, divorce, the birth of children and/or grandchildren, or moving house.
It is important that the original Will is not marked or altered in any way.
How can I amend a Will?
You can make amendments in one of two ways. Firstly, if it is a minor amendment you wish to make to your Will, you can add a supplementary document to your Will known as a Codicil. Like with a Will, this must drawn up, signed and witnessed in the same way, however the witnesses do not have to be the same in the Codicil as in the Original Will. Alternatively, if the changes are substantial, the best way forward is to re-do the Will and thereby draw up a new one.
What happens with a Will if I marry, re-marry or enter into a civil partnership?
If you marry, remarry or enter into a civil partnership, any existing Will you have will be revoked – i.e. it will be cancelled. Even though marriage revokes a Will, divorce on the other hand does not automatically invalidate a Will made during the marriage, but it will exclude your ex-spouse or ex-civil partner from benefitting under your Will if they are mentioned. It is therefore extremely important to review your Will should your marital status change in any way.
What happens if you die without a Will?
If you die without having made a Will, you will have died “intestate”. This will mean that your Estate may not go to the people you intended it to pass to and there are special rules in place as to how your Estate will be distributed known as the “Intestacy Rules”. Below are some common scenarios where the Intestacy Rules dictate how your Estate will be distributed if you were to die without a Will:
If you die leaving a Spouse/Civil Partner and Children: The Intestacy Rules dictate that your Spouse/Civil Partner will inherit all of your personal possessions and at least the first £250,000 of your Estate, in addition to half of the remainder of your Estate. Your children will then be entitled to the remainder of the half of the balance in equal shares between them. For example. If your Estate was valued at £500,000 (plus personal possessions) at the date of your death, your Spouse/Civil Partner would inherit £250,000 plus £125,000 (plus any personal possessions), and your children would inherit £125,000, which is to be divided equally between them.
If you die leaving a Spouse/Civil Partner but NO Children: The Intestacy Rules dictate that your Spouse/Civil Partner will inherit your whole Estate, including all of your personal possessions.
If you die leaving a Partner (unmarried/not in a civil partnership): The Intestacy Rules dictate that your Partner does not have any automatic right to inherit from your Estate, even if you have lived together for a long time.
If you die leaving Children but your Spouse/Civil Partner has already died (or you do not have a Spouse/Civil Partner): The Intestacy Rules dictate that your children will inherit the whole of your Estate in equal shares between them. For example. If your Estate was valued at £500,000 (plus personal possessions) at the date of your death, and you had 4 children, they would each inherit £125,000.
If you die without leaving a Spouse/Civil Partner or any Children: The Intestacy Rules dictate that your Estate is distributed in turn between your Parents, any Brothers and Sisters, any Nieces and Nephews, and maybe even further afield to Aunts and Uncles, or Cousins.
If you die and there are no surviving relatives who can inherit under the Rules of Intestacy, the Estate passes to the Crown and is known as “Bona Vacantia”. The Treasury Solicitor is then responsible for dealing with the Estate and the Crown can make grants from the Estate. If a person, who is not a relative believes they have good reason to apply for a grant, they can do so but the Crown does not have to agree with it. It is best to seek legal advice in such situations.
How can I create a Will?
Our private client solicitors department provides a complete service in relation to the drawing up and creation of a Will. Not only are the team experienced to explain ways in which your wishes can be conveyed in your Will, but they can also on issues such as including provisions in your Will to protect any children (particularly minors) or those unable to handle large sums of money, the possibility of people contesting your Wills, and advise on the latest Legislation in relation to Inheritance Tax. We also assist with the execution (signing) of your Will and we offer safe and secure storage for your Will, which is all part of our service and does not incur any annual charges.
For more information on creating a Will, please contact our specialist Wills & Probate Team at The Sethi Partnership Solicitors on 0208 866 6464
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“This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.”