Wills
Why Should I make a Will?
Making a Will is the only way to ensure that your wishes are carried out after your death. If you have not made a valid Will, your property will pass according to the Law of Intestacy. This may not be what you would have wished. In any event it is likely to take longer to finalise than if you had made a Will. During this time your beneficiaries may not be able to draw any money from your estate. It can mean arguments and distress for relatives. Making a Will lets your loved ones know that you cared enough to "sort things out " in advance.
If you are a single person you may want your estate divided amongst friends, relatives and charities of your choosing and in the proportions you want.
If you are married, don't assume "my other half will get everything". Brothers and sisters or parents may have a claim. Often your children have a right to part of your estate. If you are living as a couple but not married, you may be treated as a single person and a surviving partner may get nothing at all. One thing you can be certain of – there will be arguments and disputes at a time when the family should be coping with the loss of a loved one.
If you are a parent, you should consider who would look after your children in the event of your death. This is particularly important in the case of one parent families or unmarried parents living together. A valid Will nominating guardians is invaluable in such cases. If no one knows what you have wanted, the Court will decide on the future of your children, and it may not be what you would have wished.
A Will brings security, reassurance and above all peace of mind – not just for you, but for all those who depend on you, either now or in the future.
Having a Will written isn't the daunting prospect you might think. Indeed, it gives most people a feeling of great relief.
Wills Through The Ages
Over the centuries Wills have been the cause of family feud, fraud and any number of crimes from forgery to murder! They have also made lawyers very rich sorting out the mess. That is why today UK laws are very rigid and complex in relation to Wills.
Laws vary from country to country, so if you have property for example in more than one country, it is wise to make sure you have a Will in each country to deal with the property in accordance with local law.
Many years ago, Wills were simply deathbed statements made in confidence to the priest. It is worth noting that the church seemed to inherit a strangely large proportion of estates in those days! Eventually two witnesses were required to hear the deathbed statement, and the church got poorer! Verbal "Wills", even when witnessed, were still open to abuse or argument, so it became compulsory for the Will to be written down and witnessed by two people. Nowadays the witnesses must not be people who inherit anything under the Will.
Even now, with all the laws and safeguards, Wills are still contested in the courts. This can come about if the Will, maybe written many years ago, does not take into account things that have happened since which "might " have caused the Will to be written differently. The argument is that if the deceased could be brought back to life, he or she would have changed the Will to take the events into account. Sometimes the argument works, sometimes not, but it makes the point that it is important to review your Will from time to time. The argument that a will represents the true wishes of the deceased is far stronger if the Will was made or reviewed a few years prior to death than if it was made many years ago when the family membership may have been very different.
What Property is yours?
When preparing to make you Will, you first need to know what you own, what its worth and what you owe.
But before you do this it is important to understand the rules governing UK property ownership. The principle reason for knowing this is that you can't leave property that you do not own!
If you are single, have no minor children and own all your property outright with no shared ownership you will have little problem. You're free to leave your property to whoever you wish and to whatever institutions you choose.
However, if you own any property in shared ownership - such as 'joint tenants' or 'tenants in common' - you will need to understand how this affects your right to give away this property by your Will.
Joint Ownership
Where property is held by more than one person as joint owners (Joint Tenants) in equity, on the death of one of the joint owners his interest passes by survivorship to the surviving joint owner(s).
Jointly owned property will pass to the survivor no matter how short the period of survivorship may be, despite anything said in the Will. For this reason it may be appropriate to sever a joint ownership inter vivos (an unconditional gift made prior to death) see Tenants in Common.
Apart from the obvious, the family home, under UK law some other types of property on death move independently of the terms of the Will. These are, Nominated property, Life Assurance Policies, Pension and Death in Service Benefits and Joint Bank accounts.
Tenants in Common
Where land is held by more than one person as 'tenants in common', the share of each owner in common passes on his death under his Will.
Each owner in common is free to leave his beneficial interest (his share) to whoever he wants, however this can cause problems for the survivor particularly in the case of the matrimonial home.
The surviving spouse (or partner) could be forced to sell the property to settle the gift entitlement to the beneficiary. A simple solution to this is to give the survivor a 'life interest' in the property, enabling them to reside in the house as long as they live. It is only when the survivor dies that the beneficiary can benefit from the gift.
Severing an ownership to tenants in common requires only that one party notify the other of the intention, and the other party signs in agreement.
Both parties sign a Mutual Notice of Severance of Joint Tenancy, in effect notifying each other of the intention to sever the existing ownership agreement.
Where the property is subject to a mortgage or other loan, the mortgagee or lender should be notified, and the severance registered on the deeds through the local Land Registry Office.
Your Will Writer will be able to advise you further on the action that you need to take, and many will undertake to complete the entire procedure on your behalf as part of their service.
In summary;
Joint Tenants
- Property passes to the survivor regardless of the instruction in the Will
- Property will pass irrespective of survivorship period.
- This could be considered a waste of the nil rate inheritance tax allowance.
Tenants in common
- Can help to reduce inheritance tax liability by utilising each allowance effectively.
- Ability to 'gift' your share of the property.
- The family home may be your main legacy to your children - severance of tenancy can help protect the property from future unforeseen situations
- A life interest in your share will protect your spouse or partner from having to sell.
It is important to consider this area before up-dating or making a Will for the first time, your Will-writer will give further guidance on this matter.
Summary
There are two predators waiting to get their hands on your estate.
The Tax man and your children!
Act now to ensure that as much as your estate is preserved as possible for future generations!
If you have not written a will, the State has one for you – it will not be the one you want and it’s certain not to reflect your wishes.
Up-date you Will every 3 to 5 years to ensure it fully reflects your wishes, and so it is more difficult to challenge.
A Will brings security, reassurance and above all peace of mind.
Imagine the challenges faced by your loved ones should you die abroad, help them by making a Will and by putting your affairs in order.
Please note that all references in this site relate to United Kingdom Wills and all Wills are produced on this basis. Those people of a non-UK nationality are advised to seek advice from a suitably trained professional specialising in the laws of their own country. All information supplied on this site should be used as general information only and individuals should seek advice before completing their Will. Details on this site should not be copied or reproduced in any format without specific written authority.Special thanks goes to the Society Of Will Writers on which some of the content of this site is based.