Why make a Will?

Time and time again I get asked, ‘why make a Will’? The answer is split into two categories: critical and possible reasons to make a Will. I always write to my clients explaining why they should make a Will and set out the following considerations:

Critical reasons

  1. Ensuring your wishes are met when you pass away and that your assets are distributed to the correct people. For some clients, this is the single most critical reason that they make a Will.
  2. Avoiding assets being distributed incorrectly, or in accordance with the intestacy rules, which are the rules that govern who your estate is passed onto should you not have a Will.
  3. Nominating your Executors, which is choosing the people who you trust most to make sure your Will and wishes are correctly carried out. Sometimes Executors are close friends or family members, but more frequently they are solicitors who are appointed to ensure the estate is distributed in accordance with the Will.
  4. Selecting the preferred guardians of your children.  This often helps to avoid further disagreements or family disputes if there is any uncertainty over who looks after them in the event of your early passing.
  5. Making the most of saving strategies, tax advantages, and charitable donations through your assets. Clients will often donate small personal gifts to close friends and neighbours, as well as charities in the event of their death.

Possible reasons

These usually depend on an individual’s specific circumstances, but possible reasons may include:

  1. Ensuring the continuation of a family business if you have one. Wills can be drafted to make sure business continues as usual should you pass away.
  2. Ensuring your current family and stepfamilies are treated fairly if you have remarried.
  3. Explaining why certain people have been excluded from your Will through a letter of wishes.
  4. Dividing or rearranging any lifetime assets such as lifetime trusts.
  5. Offering additional and specific guidance to executors of the Will, such as releasing age-dependent or event-dependent assets when appropriate.
  6. Deciding what funeral arrangements are to be followed, for example whether you will be buried, cremated or donate your body for medical research.

After a general discussion about the reasons for creating a Will, you may have some further questions about what these reasons involve. Below are a few expanded examples of these reasons and what they mean:

Executors

An Executor is the person or persons who you appoint to look after your estate, pay any debts and make sure your Will is followed to the letter. An Executor can be anyone so long as they are over 18 years of age. If everything is going to one person, it is usually beneficial to make them the sole Executor. When estates become more complicated, particularly where children are concerned, it is wise to have at least two Executors, however haviong more can be problematic when decisions need to be made and an agreement is required. In some cases (for example, where there are family disputes) it is preferable to appoint professional executors such as the partners of Britton and Time Solicitors.

Guardians

Guardians are people appointed to look after your children in the event that you pass away. This is most typically the case if your partner has died before you and you want to ensure there is a clear guardian chosen in case you also were to pass away early. It is possible to appoint more than one person for example, a sibling and their partner but this could be made more complicated if they were to divorce. It would also be sensible to think about some form of fund (trust) being made available to the guardian to clear and cover any expenditure.

Legacies

Legacies are essentially gifts of money or specific items such as your car or antiques. You can only give them if they belong to you and are not joint-owned. However, you may need to consider if they will be needed by a surviving spouse or civil partner. In these circumstances you will need to make some arrangements, such as a life interest to the survivor, to cover the situation. This is usually very complicated and will require input from Britton and Time Solicitors so that the best method can be used. If you leave something to your spouse in the belief that they will honour your wishes in respect of it, you must remember they are not obliged to do so.

If the gift (particularly in the case of money) is to your children, then you will need to decide at which age they will be able receive it. They may be able to legally get it at 18 and there is no reason to stipulate a later age.

If you are making gifts of specific items such as a car, expensive jewellery or furniture etc, it is recommended that you include a letter of wishes in your Will to give all the items to one person but express the hope that they will distribute the gifts in accordance with the letter. This is a very flexible arrangement and you can change the list at any time.

Residue

This is what is left of your estate after payment of debts, legacies, any Inheritance Tax, and legal fees, but it excludes jointly owned assets which will pass automatically to the other joint owner. You must specify who is to inherit the residue. I will ask you to consider what should happen to the residue if any of these people die before you. If children are to benefit, you can specify the age at which they become entitled.

Top tips

On marriage (or remarriage), your old Will is automatically revoked and has no legal effect. If you die without making a new Will, your estate will pass under the intestacy rules.

On divorce, your Will will still be valid except for any gifts specified to pass to your ex-partner, and also their appointment as your Executor. This can create serious problems and it is advised that you make a new Will. If your new Will does not include a new spouse or partner, or a former spouse, or a child, it is possible that your late ex-partner could claim against your estate. If this applies to you, you should ask for extra advice at the time you contact us.

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