UK: Where There’s A Will, There’s A Way

Last Updated: 22 January 2014
Article by Kate Davies

Why should I make a Will?

Whether it is akin to the shortest Will ever made, which was all of three words, or the longest which ran to 100,000 words it is important to have a valid Will and for it to accurately reflect your current wishes and circumstances.

The primary, but by no means only, reason for making a Will is to enable you to specify what should happen to your assets on your death and to avoid the intestacy rules. A Will not only sets out who should inherit your assets but also the manner in which they should be received. An outright gift is often suitable however in some situations it may be better to leave part of your estate on trust. A trust can be used to keep control of assets being left to young children (for example, by delaying their inheritance until they have finished full-time education), or to protect assets from ending up in the wrong hands if your beneficiaries get divorced or remarry.

The intestacy rules, which apply if you die without a valid Will, are best avoided as they give you no control over what happens to your assets and are very unlikely to distribute your estate in the manner that you would want. Unmarried partners have no entitlement, and the amount which passes to a spouse or civil partner is limited. Children will inherit assets outright at age 18 which is often considered too young, and in some cases assets will pass up a generation which is very inefficient from a tax planning perspective. Administering an estate under the intestacy rules is also time consuming and expensive; having a Will in place can significantly simplify the administration needed on death.

A Will allows you to name executors who will be responsible for administering your estate and who will act as the trustees of any trusts set up under your Will. This allows you to choose the right people for the role who ideally will have a good knowledge of your affairs and who you would trust to carry out your wishes. You can also appoint guardians for your minor children in your Will. The guardians that you and your partner name will assume parental responsibility for any children under 18 on the death of both parents. If no guardians have been appointed an application will need to be made to the court which can be not only time consuming and expensive but also distressing for the children. Your Will is a convenient place to record any wishes that you may have about your funeral or, for example, organ donation. If looking for inspiration you can turn to Charles Dickens who requested that mourners attending his funeral should "wear no scarf, clock, black bow, long hatband, or other such revolting absurdity".

Last but by no means least, are the Inheritance Tax planning opportunities that making a Will provides. Broadly speaking, Inheritance Tax is charged at a rate of 40% on all assets over your allowance; the allowance is currently GBP325,000 and will remain unchanged until at least 2018. A well drafted Will can, however, make the most of the available exemptions and reliefs which include relief for some business and agricultural assets, and exemptions for assets left to spouses, civil partners and charities.

When should I review my Will?

Anyone aged 18 or over can make a Will and should do so when they acquire assets in their own name, be that by purchasing a property or by receiving an inheritance or gift. If you acquire assets abroad, such as a holiday home, you must review your Will to check whether it covers assets outside of the UK and if so whether the provisions of your Will are consistent with any forced succession rules that exist overseas. On the birth of children you should check your Will to ensure that your estate would be distributed in accordance with your wishes, which may have changed, and that guardians have been appointed.

Marriage revokes a Will and it is therefore essential that you make a new Will when you get married, or once engaged (provided that such a Will expressly states that it will not be revoked by your marriage to your fiancé(e), who must be named in the Will). Unlike marriage, separation or divorce do not revoke a Will. On separation you should review your Will which is likely to need amending to remove your spouse or civil partner as an executor and a beneficiary. Divorce automatically removes a spouse or civil partner as an executor and beneficiary, ensuring assets do not pass to him or her, but will leave holes in the Will as it was probably drafted so that the spouse or civil partner receives the estate on death. The guardians named for your minor children should also be reviewed; if a Joint Residency Order has been made then your divorced partner would maintain parental responsibility if something was to happen to you but not to them. If, however, a Sole Residency Order has been made in your favour, the guardians named in your Will would acquire parental responsibility on your death even if you are survived by your divorced partner.

Needless to say, you should also review your Will if you are diagnosed with a terminal illness or any condition which may have an impact on your capacity to make a Will. If necessary, it is possible for instructions to be taken and a Will drafted in a matter of hours. Even Wills made at the eleventh hour can save administration time, Inheritance Tax and uncertainty about the wishes of the deceased. Finally, even if none of these life events take place I recommend that you review your Will every five to ten years as changes to your circumstances or the law may mean that your Will (and any side letters kept with your Will) need updating. Although your Will is often a difficult subject to think about, where there is a Will there is a way to a greater peace of mind through the knowledge that your loved ones will be properly looked after on your death.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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