Leaving a Legacy to Last

October is upon us and with it, the renewed invitation to have your Will drawn up for free.

Despite this welcome financial incentive, for a lot of people the prospect of stocktaking assets and acquaintances – not to mention facing the all-too-scary fact of one’s own mortality – keeps this task firmly at the bottom of the to-do list.   No more!

Read on to find out why you really shouldn’t wait until the autumn of your days to get your last Will and Testament legally acknowledged and why it needn’t be so onerous when you do.

Where there’s no Will, there’s no Way

Let’s begin with a look at the default position we unwittingly fall back on when we don’t have a Will in place.

This is known as intestacy, and an individual without a Will is known as an intestate.  The Rules of Intestacy are always applied upon death of an intestate person, and in a nutshell, they boil down to three basic scenarios:

1) Any surviving spouse or civil partner receiving the lions’ share (they get everything if  the deceased had no children, or the first £270,000 and half of the remainder if the deceased had children; any offspring would share the other half of the remainder).

2) Other living family members inheriting or sharing the estate if there is no spouse or civil partner (this starts with children and grandchildren, but if there are none, the net is cast ever wider in a particular order, stopping short of second cousins, but including half-blood relations)

3) The whole estate passing to the Crown if the deceased had no surviving relatives.

Note that it is only ever a few of the closest blood relatives who inherit from individuals with no Will; there is no provision whatsoever for other family members, friends or charities.

If you are among the estimated three-quarters of unmarried, co-habiting couples in the UK who have no Will in place, it is also important to note that the idea of a “common law spouse” means nothing in this context.  Although someone who had been living with their partner for a minimum of the two years immediately preceding their death may, with strong legal support, make a formal claim for support through the courts, there are no guarantees, and the process is really not one you’d want to put any of your loved ones through. 

Furthermore, in the case of an intestate being a parent of a child or children under the age of 18, apart from the potential lack of financial provision, there’s also the matter of their continued care.  Regardless of a child’s wider family circumstances, if neither parent survived, or the other was not able to honour their parental responsibility; in the absence of guardians being named in a Will, the choice of guardian would be made by the Courts.  Being taken into care, at least for an interim period, would not be out of the question.

Setting the Wills in Motion

If you imagined a different outcome for your loved ones, the great news is that a professional Will Writer and a little time and thought could bring you the outcomes you’re after.  Together, you can generate a legally binding document which accurately reflects your wishes. It will be easily understood and can be proved quickly in the Probate Court. Minimising any problems, delays or hardships for your nearest and dearest as they grieve.  

A Will Writer will also be able to bring their experience if you require impartial advice on any procedural matters or areas of doubt.

Picking up the phone to make an appointment is an easy first step to take.  Our friendly Wills and Inheritance Planning team will guide you through the process.  An initial interview should only take about an hour and after that a draft can be drawn up for your perusal.  Here’s a little overview of what to expect, and some considerations to help you prepare for that first meeting:

Inheritance Tax

A basic awareness of inheritance tax will help you in some of the decisions that surround will-making.  The basic crux is that inheritance tax is not charged on the initial £325,000 of an individual’s estate (this is known as the threshold), but thereafter is charged at 40%.  Exceptions to this include money left to a spouse or civil partner and money donated to charities or community amateur sports clubs, none of which incur any inheritance tax charges.  Our team at Weisberg Legal, can advise you further on any issues relating to inheritance tax, to include transference of nil rate bands and other (potentially favourable) tax allowances.

Estimating your Estate

Ahead of any meeting, it helps to collate details of all property, possessions, money, bank accounts, financial investments, businesses, any life insurance policies, death in service benefits, royalties, pensions, and debts and liabilities that you are aware of.  Not all of these will necessarily transfer to your estate or be giftable in your will so the more detail you have, the better placed your Solicitor will be to comment on them.  They can then estimate inheritance tax, and help you to better envisage what there is to be gifted.

Remember that funds in joint bank accounts do not usually count towards the estate; they automatically become the property of the other account holders.  Similarly, if you own property with anyone else and are joint tenants (as opposed to tenants in common), the property would become theirs upon your passing, and no share of it would be included in your estate.

Considering Gifts

People often choose to leave specific items such as jewellery, art or furniture to particular individuals.  Make a list of any such items that you wish to leave and the full names and addresses of the desired recipients.  If your list is long, it may be included as a Letter, separate to the Will, which you will have the possibility of updating whenever you wish.

Any intended monetary gifts also need detailing with full names, addresses and registered charity numbers where possible.  Spend some time to ensure no one is forgotten and that your favourite causes are listed.

Keep in mind, however, that the naming of individuals can get problematic.  If, for example, your children are all named at the time of writing but another is then born at a later date, they might by oversight not get added into the Will.  Conversely, a lack of naming can open the doors to individuals claiming a share that you had not wished them to take.  Be clear on all potential claimants and your corresponding desires, and your Solicitor will help you to find a suitable solution to any such dilemmas.

After the Fact and In the Event…

Once all debts, taxes and gifts have gone out, the remainder of an estate is referred to as the Residuary Legacy.  It is common for this to go to the deceased’s partner, if applicable, and then to any children in equal shares upon the death of the partner, but the fate of the Residuary Legacy is entirely in your hands so have a good think about your wishes in this regard.

You will also need to consider what provision you wish to put in place in the event of all your chosen beneficiaries dying ahead of you.  Planning for this circumstance is often referred to as your “Long Stop” and may include contingent inheritance for more distant family members and/or further donations to charities.

Another eventuality which may be playing on your mind is the possibility of loosing your mental faculties before your time comes.  Friends and family do not have the automatic right to deal with your health and finances on your behalf and, although they can apply to the courts to deputy for you, it’s far easier to make Lasting Powers of Attorney; one for health and welfare, one for property and financial affairs.  Do this while you are still of sound mind, and in each case, appoint one or more attorney (often family members) to act for you if it comes to it.

Trust Issues

Trusts allow for a little more texture in the way your money is passed on and there are several types of trusts.  All require the appointing of Trustees to administer them, keeping accounts and making impartial decisions.

Your Solicitor will be able to advise you on whether the establishing of any Trusts would benefit your situation.  This may apply if one or more of the beneficiaries is a minor and/or has needs which would make it appropriate for a third party to manage the inheritance on their behalf.  A good choice of Trustee in the case of a minor might be their guardian – which you must be sure to secure and name – as they will be in a good position to know the child’s needs.

Implementing a trust may also benefit your situation if, for example, one parent would inherit from the other before the money is passed to the children.  Essentially this would be tantamount to two separate individual’s estates, and the right kind of trust can allow for the moneys to be treated as such rather than lumped into one large estate with only one person’s inheritance tax threshold applied.

Alternatively, a loved one may live in a property that you own and you want to ensure their continued right to live there despite the property ownership potentially passing to a third party. Again, there is a trust for this, along with various other situations.

Administrative Practicalities

The responsibility of fulfilling the wishes expressed in your will must be carried out by a named person. You will be required to name at least one (ideally two, and up to four) executors.  Their job will include administering the estate, applying for probate, paying taxes and debts, distributing the estate among the beneficiaries, and defending the estate should legal actions arise.  They need to be physically present, so choosing a person who lives abroad would be ill-advised.

Executors and trustees alike can be any adult of your choosing who has mental capacity.  Beneficiaries of the Will are not exempt from taking the roles (which can be performed by the same person) and so in many instances they are given to the surviving spouse, a family member or close friend.  Be sure to seek their consent. It’s worth bearing in mind that if you name multiple individuals, they will need to arrive at decisions jointly so think about how well they get on.

You may prefer to take the pressure off your loved ones, especially if your estate is complex, by appointing professional executors and/or trustees.  Fees will need to be paid to them from out of the estate.

Additionally, two people who are not themselves beneficiaries will be required to witness your signature once the final document is ready.  Thought should then be given to the storage of it.  It must be kept safe and it’s crucial that your executors know where to find it.  Storage facilities are available – our friendly team at Weisberg Legal can advise, if desired.

Other considerations 

If you have clear ideas about how your funeral should be conducted, or of any elements to be included in it, instructions can be recorded in your Will.  However, as there is no guarantee that your executors will have had sight of the Will ahead of the ceremony, it is important to relay your funeral instructions separately to them so they can plan it with confidence of fulfilling your wishes.

What Will be, Will be

Wills are notoriously hard to future proof.  Life is forever evolving so, in our experience, it’s best to resist the temptation to anticipate events which may never transpire.  A more effective approach is to work with your present feelings and circumstances at the forefront of your mind.  Ask yourself what you would want to happen if you died at this current juncture of your life.  Then prepare to revisit your Will regularly – every 5 years at least.


Get in Touch

The Wills and Inheritance Planning team at Weisberg Legal Solicitors are always pleased to hear from you! For tailored advice from our team of legal experts call us now on 01225 422466.

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