Making A Will - Why it pays to plan for your death

Okay, none of us likes to think about death. There are more cheery things to think about and, anyway, life is for living.

After all, things will take care of themselves should anything happen to you, right?

Well, not exactly.

In fact, if you die without having made a will (otherwise known as ‘intestate’), certain things will, by law, happen automatically whether that was your intention or not.

So, what does happen if I die intestate?
If you die without making a Will, the law imposes rules which dictate how your property will pass.

This means you have no control over who will receive your property. For example, you cannot ensure that you benefit friends or charities.

If you hold property in joint names with another person it may pass automatically to that person upon your death. But if the property is a house or land, it is possible that it would not pass automatically. This depends upon the terms of your title deeds.

In addition, if you die without making a Will, the personal representatives who have to deal with the property comprised in your estate will be determined by statutory rules.

But I thought my property would pass to my spouse?
If you are married you would usually want your property to pass to your spouse. And people often assume that, if they have no Will, everything will pass to their spouse. But this is not always the case.

Under the intestacy rules only property up to a certain value passes automatically to your spouse. If your estate includes a house in your sole name, it is possible that the value of this would exceed the amount which your spouse would automatically receive.

The balance of your estate would then be divided between your spouse and your children. Or if you have no children, your spouse may have to share that part of your estate with your parents, brothers and sisters, or nephews and nieces.

What about if I’m not married?
If you have a partner but are not married, your partner has no automatic right to your property should you die.

In order to establish a claim, he or she would have to rely on the provisions of the Inheritance Act – which may not be applicable and are in any case expensive to enforce.

Similar conflicts can arise between separated spouses and between half brothers and sisters in connected families.

What happens if I’m in a same sex partnership?
If you are in a same-sex registered civil partnership, the same intestacy rules apply to partners as to married spouses.

And what happens if I have no partner or children?
If you are not married, not in a civil partnership and have no children, then the main beneficiaries of your estate may be your parents or brothers and sisters or, if they have died, nephews and nieces.

But you may have friends whom you would wish to benefit rather than allowing your estate to go to more distant members of your family. If that is the case, then you should make a Will.

If you have no close family, the intestacy rules can give rise to very serious complications. The costs incurred in tracing very distant relatives can be high.

So what are the benefits of making a Will?
There are many benefits to making a Will. Amongst other things:

• You can choose your own Executors – that’s the people who will carry out your wishes and make sure your property goes to whom you intended. That means you get to choose people you know who are suitable and who are likely to be willing to act.

Since it is the Executors who have the responsibility for administering the estate, including the distribution of personal effects and the contents of the house and the sale of the house, it is of vital importance that the right person is chosen.

If you have no suitable family or friends to act as your Executors, or if you think that it might be useful to appoint someone from outside the family (to avoid the possibility of arguments), then you might wish to appoint a Solicitor either to deal with the whole of the administration of your estate, or else to act jointly with members of your family.

• You can appoint ‘Guardians’ to look after your children – this is important if you have young children and are concerned to provide appropriate care for them after your death. It is, of course, advisable to consult the prospective guardians as to whether or not they are willing to act.

• You can choose your own funeral arrangements - if you want to go out to music from Elvis Presley and for your friends and family to have a knees up at The Red Lion, you can say so. Also, if you have special wishes as to burial or cremation these can be included in the Will.

And you can also state if you wish to donate any part of your body for medical purposes.

• You can pay less Inheritance Tax - when advising you about making a Will a solicitor will collect sufficient information to find out whether Inheritance Tax is likely to be paid upon your death.

Careful Will drafting with the help of a solicitor can have a significant impact upon the level of Inheritance Tax which will be paid. It provides an opportunity to assess the position and consider what steps can be taken to minimise the Inheritance Tax liability.

Even if you think that your estate would not be very large, you can save your relatives and friends a lot of anxiety following your death by making a Will which sets out your wishes as to the distribution of your estate.

Okay, it looks like a will is a good idea, but can I do it myself?
Yes, you can – and you can buy will making packs, but these are very basic and will not, for example, ensure that you make the best inheritance tax planning decisions.

Also, if you have special wishes which are not that straightforward – for example, provisions relating to care or financial support for children – you will need specialist legal advice.

Most solicitors now quote a fixed fee for drafting your will – and give discounts for couples – so you should know up front what the cost is.

Click here if you would like to receive FREE advice from a fully qualified solicitor.