What Is The Purpose Of A Will?

A will is a legal document that sets out what you want to happen to your belongings when you pass away

Making a will is essential if you want to make sure your assets are protected and pass on to those whom you decide, when you pass away. If you have dependants, your will is the place to indicate who you wish to take over the role of primary carer in the event of your death, another essential course of action regarding the one of the most important aspects of will making.

Should I Have A Will?

In short ‘no’ legally you do not need to have a will but that doesn’t mean to say you shouldn’t make one! Everyone should have a will!

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The Cost Of Making A Will?

Using a solicitor to write your will is the best way to ensure peace of mind for both you and those you leave behind.

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Inheritance Tax

Inheritance tax is a topic that worries many people. The uncertainty of what will happen to your assets after passing away is a big concern.

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Dealing with a will is something that people tend to put off

It’s not a nice thought and it is understandable that you want to keep it at the back of your mind for as long as possible. There are many reasons people give for putting it off: fears of morbidity or the feeling that you don’t really have that much to leave behind are just a couple of reasons that all too many people neglect to write a will.

However, if you pass away without a will, the assets that you own will be out of your (and your family’s) control and your belongings might end up in the possession of someone that you or your family would not have wanted. They could be distributed as decided by a court of law who may have very different ideas as to who should inherit what. This could leave the most important people in your life with nothing. This would mean an expensive and stressful legal battle if they were to recoup the things that they know you wanted them to have.

There is no reason for this to be the case in this day and age when in most cases, writing a will is fairly easy to do, taking up very little of your time and being quite a simple process. You are well within your rights to leave anything you own to whoever you like. Your solicitor will advise you on how to set it all out so your wishes are clear and easy to understand after which you can have peace of mind and your loved ones will have no worries when you have gone.

How Does a Will Work?

When you make a Will, you name the people that you would like to take ownership of your belongings when you die. These people become your Beneficiaries. Anyone can become a beneficiary and you can have as many as you like, distributing amongst them your possessions as you see fit. There are no restrictions as to who you can choose. Some people without families (and some with), leave their assets to charities or other individuals and organisations. We have all heard the stories of a great aunt who fell out with her family and left her fortune to the cats home. And yes, this is allowed too.

You can choose to leave specific percentages of your Estate to a Beneficiary or you can leave specific items to certain people. Certain pieces of jewellery might be sentimental to particular people and your car might be best suited to another. It is entirely up to you who gets what. Although this can only be shared out the way you wish if you have written a will. If you want to leave a particular amount to your grandchildren that you want to be distributed equally, it’s best not to name them all individually. If more grandchildren come along they would not be named in the Will and would not get anything if you don’t get around to updating your will after they are born.

When you are writing your will can name one or more Executors. People who act as Executors of your will take control of your affairs and take on the responsibility of distributing your Estate in the ways you have specified in your Will. Executors have quite a drawn out and complicated task, therefore it is important to choose ones that you trust. Executors have a legal responsibility to distribute your Estate in a lawful manner. It is possible for an Executor to be someone who is also named as a Beneficiary.

If you have children, your will is the place to make provisions for them and also lay out who you wish to take over their care when you die. You have the chance to appoint Guardians for any minors you have parental guardianship of and who are under the age of 18. This is the only way of being sure that the person or people you want to take on the role of their primary carer actually gets to do the job. In the case of married parents this is quite straightforward. However, if you are a single parent of have unusual or complicated circumstances, things can get very complicated. It is important that you know your children will be taken care of by the right people after you pass away so be sure to make these provisions now.

As an aside...you can also write in your will about any wishes you have for your funeral when the time comes. Some people specify songs and music they wish to be sent off by. Others specify charities they would like donations to be sent to instead of flowers and some even have stories to be read out on the day. This is a nice idea and takes away some of the hard decisions from your family at an already stressful time.

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Trusts

If your Will includes a Trust then, once your will has been executed, the Trustees will ‘manage’ or take care of the Trust property for however long the Trust lasts. Trusts are usually made when beneficiaries are unable to take care of the property themselves, whether they be children or vulnerable people. Therefore, Trustees have a legal duty to the Trust’s beneficiaries and must act in the beneficiaries’ best interests at all times, often requiring the advice of legal experts.

Being a Trustee is not a light responsibility by any means. You should ask permission to appoint a person, making sure they agree to their position otherwise they may particularly unwilling or even refuse to act after your death.

If you include a trust in your will you can:

Protect your estate, and the money tied up therein, against potential future care fees. This is a very important thing to consider. None of us know how long we may live and the extent to which we may need assistance as we grow old or sick. The ‘dementia tax’ is an awful thing to happen to everything you worked hard to provide for your family, and this is one way of avoiding it.
Leave assets to a vulnerable or disabled person. If you want to ensure that a vulnerable person is protected with regards to their rightful inheritance then a trust might be advisable.
Ensure children from a previous relationship inherit if you have a new spouse/partner.

There are different types of ‘trust wills’ which can be used, depending on your particular circumstances. These include:

Property Trust Wills – Used to protect a property’s value for the future.
Interest Trust Wills – Assets are held for a beneficiary, providing an income if necessary, upon their death, any remaining assets are passed to another.
Discretionary Trust Wills – Assets are distributed at the trustees’ discretion who give inheritance depending on the situation.

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How Do You Decide Whether You Need a Will Trust?

It might seem enough to simply name your beneficiaries in your will. Why bother setting up a trust when it can be included in a legal document?

There are actually a number of reasons why. A common reason is those who are due to inherit are not in a position to manage their inheritance. A child inheriting the proceeds of your estate would have little understanding and no control regarding what to do with your estate and no capacity to set themselves up for the future.
Usually, at least two trustees are named in the will. This could be the executors if you wish.

The cost of making a will is relatively small but the peace of mind that comes from having a will is priceless.

Frequently Asked Questions

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01. Why make a will?

If you die without having written a Will, you are said to die intestate. This means that everything you own, including all investments and savings, will pass to you relatives in an order of priority which is specified by law. This might not be the way you would have chosen. It does not take very much time to make a Will and the costs are not extortionate. By making a Will you can make sure that your estate is dealt with as you wish, minimising the distress suffered by your loved ones.

02. What are Executors of a Will?

Executors of a will are the people you choose to distribute your belongings after you die. They are responsible for sorting out all aspects of your affairs such as notifying people of your passing, arranging your funeral, dealing with any debt, valuation of your assets and then distributing your estate to your named beneficiaries.

03. Can a beneficiary be a witness to my Will?

No. A beneficiary of your Will should not be a witness to your signature. The spouse or civil partner of the beneficiary cannot be a witness either. If they are, they will automatically be disinherited.

04. How often should I update my Will?

It is usually recommended that you review your Will at least every five years or whenever your circumstances change such as because of marriage, divorce/separation, having children or purchasing a house.

05. Do my assets pass automatically to my partner or spouse?

Not always. Unmarried partners without a Will might not be recognised as a beneficiary. Unless you enter into a marriage or civil partnership, your surviving partner will not automatically receive any of your assets unless named in a will. Even if you are married or in a civil partnership, your spouse or civil partner are not guaranteed to automatically receive your entire estate. Your children, including children from previous relationships, as well as other family members can be entitled to a share of your estate immediately upon your death. This could have a devastating financial effect on your spouse. Ensure that your estate passes to those you intend by writing a will.

06. Can I save inheritance tax on my home and stay living there?

Yes, however, this is quite complicated and you will need to prove that you pay a full market rent for living in the property under the terms of a lease. In addition, if you give away the property to a child as a gift and they divorce or suffer any other financial claims on their estate, your home will be at risk. Some capital gains tax will also be owed when the property is sold. Read about other solutions to inheritance tax we have outlined elsewhere.

07. What If I Don’t Have Anything to Leave?

Most people have ‘something’ to leave even if it’s just your personal possessions. Even if you do not have a large sum of money or own a property now, it doesn’t mean that you will not have more when you die. You could benefit from a sudden windfall, inherit a property yourself. You might never know when you are likely to die or how much you will own at that time. Therefore it is our recommendation that you write a Will written so that your wishes are clear.

08. What about my Young Children?

Appointing a Guardian is one of the main reasons why parents make sure they have a Will in place. If you are responsible for children under the age of18, then you can include in your Will the appointment of a Guardian to take care of them until they are 18 years old. This applies only if there is no one else with parental responsibility for your children when you die. You can name your children as beneficiaries in your Will even if they are infants. You should consider the age at which you would like your children to be able to access their inheritance. Whilst the child is under that age then their inheritance is managed on their behalf by ‘Trustees’. Trustees can also be appointed in your will.

What Happens if I Don’t Make a Will?

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Rules of Intestacy

The Rules of Intestacy put your family members in an order of priority. In many cases these laws do not allow for modern and blended families, not recognising unmarried couples, step children and so on. If you have not made a will there is every chance that your assets will be distributed in a way you would not have chosen. To avoid this it is worth spending a little time working out for yourself what should happen after you die.

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