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The importance of making a will

There are many advantages to a will, whilst the consequences of not writing one can be extremely costly  and disastrous for the loved ones left behind.

October 2009. The only certainty in life is that we will die. Many people are slow to make a will. In Britain the thought of making of a will is very much buried: two thirds of Britons die without making one.

There are many advantages to making a will, whilst the consequences of not doing so can be extremely costly for the estate and disastrous for the loved ones left behind.

Below are some of the consequences that can arise when a will has not been made.

• Often there is confusion and disagreement among those left behind which create unnecessary turmoil and stress that can even result in costly legal bills.  

• Your family could suffer acute financial hardships because of the delays in dealing with your estate.  These delays can run into years.

• Your spouse will not necessarily inherit everything you own.  Your children could inherit part of your estate automatically, if you have no children, your other relatives could have a claim.  In either case, your spouse will get less; he/she may have to sell their home. 140 homes are sold each year.

• If your children are over 18, they can spend their shares as they like, even if this leaves your spouse in financial hardship.  No-one will have the right to question their actions.

• Even if you don’t live with your spouse and are separated, they could have a claim on your estate. 

• If your spouse remarries, her/his new partner will get one half of everything she/he inherited from you.  The new spouse need not spend anything on your children.  Furthermore, on his/her death she/ he may exclude your children merely by writing a Will to that effect.

• If your spouse dies before you and your children are under 18 and your relatives cannot agree on guardianship, then a court will make the appointment.  They could nominate a social worker or someone else. 

• Stepchildren, Godchildren, Friends and Charities will receive nothing.  If you are not married to your partner, she/he may also get nothing.

• Your assets, on your death, are probably greater than you realise.  By not taking legitimate steps to lower Inheritance Tax, the Inland Revenue could get money that could have gone to your Family.  This also now benefits those in a Civil Partnership agreement. Your loved ones could be liable for up to a 40% tax bill.

• You could lose more of your estate than is necessary to Long Term Care fees.  That money could have instead gone to your family.

Making a will is vital. The consequences of not making a will are severe. A will is one of the most documents you will ever write.

What is a will.

A will determines how your affairs, possessions and estate are handled after your death. A will ensures your partner and children are provided for and wills allow for clarity especially in regards to ambiguous intentions in respect of ex partners or step children. Also one of the most important reasons to make a will is to ensure you don’t pay more inheritance tax than necessary. If a will is not made before you die you die “intestate” and the state distribute your estate according to law and not your wishes and intentions.

Children.

If you have children under the age of 18 and you do not make a will your children stand to lose the most. Without a will the next of kin to your children have to make an application to the court to have executors and trustees appointed to administer the assets of the estate. All discretion is taken away from the family and the decision making is left to the bureaucracy. The cost and stress can be enormous especially for the young children.

Inheritance Tax.

If you leave everything to your husband, wife or civil partner.

In this case there usually won't be any Inheritance Tax to pay because a husband, wife or civil partner counts as an 'exempt beneficiary'. But bear in mind that their estate will be worth more when they die, so more Inheritance Tax may have to be paid then. However, if you are domiciled (have your permanent home) in the UK when you die but your spouse or civil partner isn't you can only leave them £55,000 tax-free. In relation to other beneficiaries you can leave up to £325,000 tax-free to anyone in your will, not just your spouse or civil partner (tax year 2009-2010). So you could, for example, give some of your estate to someone else or a family trust. Inheritance Tax is then payable at 40 per cent on any amount you leave above this. 

Making the will.

There are many ways to make a will; you can write your own will at any time. There are many on line services, books and DIY kits available to help you make a will. However writing a will without a solicitor is not advisable especially if your estate is complicated and involves businesses and many family members. Although making a will is straightforward and relatively simple expert advice is often required to ensure the correct tax decisions are made and to ensure the formalities and correcting drafting procedures are adhered too. For a will to be valid in law it must meet the following minimum criteria:

1. your will must be in writing, and signed by the testator (person writing a will), or by some other person in his presence and by his direction; and
2. it appears that the testator intended by his signature to give effect to the will; and
3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. each witness either – (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

New research by the Law Society has revealed the risks the public are being exposed to by unregulated, unqualified and uninsured will writers.

The findings reveal badly drafted wills that render the deceased’s estate wholly or partially intestate, poor tax planning and ‘vanishing wills’, as well as hidden charges which inflate the advertised price of the will.

Law Society members specialising in will writing, trusts and probate, have provided examples of shoddy, badly written and not legally binding wills that have been written by unregulated will writers. In these cases the solicitor has stepped in to clean up the mess.

Reviewing and changing your will

After writing a will it should be regularly reviewed and kept up to date, you should review and reconsider the contents of your will at least every five years and after any substantial change to your family or affairs, particularly after events such as marriage, divorce or birth of children.

To remain legally valid, any changes must not be made to the original will as they are assumed to have been made at a later date and so would not form part of the original legally valid will.  The only way you can legally change a last will and testament is by making a codicil (supplement) to the original will or making a new will beginning with a clause revoking all previous wills and codicils.

How to keep a will.

Your will must be kept safe and your family, beneficiaries and executors must know where your will is stored. You can keep it at home or deposit your will with a solicitor or a bank for a small fee. You can also file your will with the District Probate Registry for £15.00.

Should you make a will.

Every person over 18 should make a will and review it regularly; granted making a will is not the most pleasant thought to enter into however the importance of making a will is vital and should not be undermined. The evitable will happen and you will pass on, the least you can do for our loved ones left behind is to ensure your estate is distributed fairly to avoid feuds and further heartache between your families. Also you will be ensuring your dependants are provided for and they capitalise from your estate instead of having to lose their inheritance to the state.
 

By Cartwright Adams Solicitors

The above article is meant to be relied upon as an informative article and in no way constitutes legal advice. For legal advice regarding your case, please contact Cartwright Adams on +4420 7887 7550 for a Consultation with a Solicitor.
 

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