Why Write a Will
Unless you make a Will, you cannot guarantee that your belongings will be distributed as you want when you die. The consequences of this can be very serious, as your estate will be distributed in accordance with the Intestacy Rules laid down by Parliament. As a result, many unnecessary complications arise, adding to the grief of the bereaved and the expense of winding up the deceased person's estate.
Making a Will is something that everyone means to get round to one day, but keeps putting off. The trouble is, no one likes to think about death, particularly their own. It is a subject that we usually try to put to the back of our minds. However, there are numerous benefits in writing a Will, which relate not only to who should inherit your estate. For example, you may also:
- Appoint Guardians for minor children
- Stipulate who should deal with your estate
- State your funeral wishes
- Attach conditions to any gifts you many wish to make
- Stipulate which, if any gifts should be free or subject to Inheritance Tax
- Avoid family disputes
Dying without a Will (Intestate)
This is a quick guide to what would happen and should not replace seeking the advice of a Professional Will Writer.
If you have a lawful spouse and your estate is worth less than £125,000 then your spouse gets everything. If your estate is worth more than £125,000 and you had no other surviving relative (for example children, grandchildren or parents), then your spouse will still get everything.
If you have a lawful spouse, plus children and your estate is worth less than £125,000 then your spouse gets everything. If your estate is worth more than £125,000 then your spouse would get £125,000 and the right to take interest on the remainder, but not the capital itself, in half of anything over this sum. Your children would get half the sum over £125,000 immediately and be entitled to the other half on the death of your spouse. Should any of your children die before you then their children would be entitled to take their parent's share.
If you have a lawful spouse, no children, but other relatives and your estate is worth less than £200,000 then your spouse gets everything. If your estate is worth more than £200,000 then your spouse would get £200,000, plus half the balance. The remaining half goes to the other relatives in this order of priority: parents; brothers/sisters; half brothers/sisters; grandparents; aunts and uncles; spouses of aunts and uncles.
If you are not lawfully married, but have had children and your estate will be shared between the children. Should they die before you then their children would take their share.
If you are not lawfully married, have no children, but have parents or have had brothers/sisters/grandparents/aunts/uncles your estate will be shared equally amongst them in this order of priority — parents; brothers and sisters; half brothers and sisters; grandparents; aunts and uncles; spouses of aunts and uncles. If any of these died before you but have living children then the children will take their parent's share.
If you are not lawfully married, and have no other relatives your estate will go the Crown.
Preparing for Appointment
What do you need to think about before your appointment?
- Who your Executors and Trustees should be. Although not essential, it is advisable to obtain the agreement of those whom you wish to appoint as Executors and Trustees.
- Guardians need to be appointed for young children. This is especially important if only one parent is alive.
- It is useful to have an estimate of the value of your estate by calculating the market value of assets; these include your home, personal possessions, cash, investments, etc. For further details see our Inheritance Tax Calculator
- The total amount of your liabilities (mortgages, loans and other liabilities).
- You need to prepare a list of the persons to benefit from your Will, including any charities. Please note that if you do not intend to provide reasonably for anybody who is dependent on you, the Court may alter your Will to provide for them.
- You need to think about to whom your assets should pass if a Beneficiary dies before you.
- You should consider funeral details, such as cremation or burial etc. This can save your family additional worry at a very difficult time.
Who should I choose as my Executors?
- An Executor should ideally be younger than you, although a person aged under 18 years cannot obtain Probate.
- Although you may choose as many Executors as you wish, only four may be appointed to act by the Probate Registry at any one time.
- It is often worthwhile to include a substitute Executor in the event of the appointed Executor dying before you or being unwilling or unable to act.
- The choice of Executor is very important as a considerable amount of work and responsibility may be involved. Your Executors will be responsible for collecting in your estate and dealing with its distribution according to law. This could involve arranging the funeral and generally taking over your affairs, including the responsibility for payment of taxes and other liabilities.
- It is a common misconception that a Beneficiary cannot be an Executor - there is no objection to this.
- If the Will includes a Trust, it is recommended that the Trustees be the same as the Will's Executors.
Appointing Guardians for Minor Children
What happens to children on the death of a parent?
This depends on your particular circumstances and the plans that you have put in place. If there is no surviving parent with 'parental responsibility', and no appointment of a guardian has been made, then the child becomes the responsibility of the Court. Until such time as the Court appoints a guardian, the child may be taken into care. Appointing a guardian, rather than leaving the decision to a court, has several important advantages:
- you can choose the person whom you would wish to care for your child, rather than leaving the decision to a judge
- if you feel that it is appropriate, you can discuss your choice with your child so that he or she has the security of knowing who will take care of them in the event of your death
- you can discuss your wishes for your child's upbringing with your chosen guardian and leave him or her a detailed letter of your wishes
- you can discuss your choice with your family and pre-empt any dispute about who should care for your child after your death.