I have practised Private Client Law for many years and yet I always wonder why so many people don’t have Wills. Is it because they don’t realise the importance of having one in place? I have often heard the words “I’ll be dead so I don’t care what happens to my money”. Is that really true? When I speak to people about Wills and under the rules of Intestacy, which is what happens to your estate when you die without a Will, many are shocked to learn that their estate may end up in some long distance cousins hands that they have never even spoken to.
Here are my top 5 reasons to consider making or updating your Will.
A lot of people assume they don’t need a Will if they are married as they believe their entire estate will pass to the surviving spouse. Without a Will in place stipulating you want your spouse to receive everything you own, the law dictates how much passes to the survivor. If you are married with children, only the first £250,000 will pass to the surviving spouse. Half the remainder will also pass to the surviving spouse, and the other half will remain in trust for the children. If you are married without children, then the first £450,000 passes to the surviving spouse.
Marriage renders any previous Will null and void. So you will need to make a new one (unless the will is written in contemplation of that marriage).
I am often approached to do new Wills for clients who are on their second or third marriages, but have children from their first. If a Will was made at the time of the divorce, upon remarriage, the Will is revoked. If you are trying to protect children, from a previous relationship by leaving them some of your estate, you could be accidentally disinheriting them if you do not renew your Will after remarriage. As mentioned above, your spouse is entitled to the first £250,000 of your estate, which may not be what you intended.
I have spoken a few times about how little protection cohabitees have. There is no such thing as a “common law spouse”. Some clients believe that if they have been cohabiting for over a certain period, they obtain certain rights. This is untrue. If you cohabit, ensure the property is owned a certain way (joint tenants or tenants in common) and that you have a Will in place.
If you have a Will that names grandchildren, for example, what happens on the arrival of further grandchildren, after you have made your Will? You can either specifically name your grandchildren, but your Will needs to be updated every time there is a new addition to the family. Alternatively, you can state, “I leave to ALL my grandchildren”. Guardians is another important thing to think about if your children are minors when you die. Who decides where your children will live if you haven’t made a Will providing for them? The answer is Social Services will become involved in the family and they make a recommendation to the Court as to who should care for your children, and it may not be who you would have chosen. So don’t leave it to the Courts to decide for you.
Until divorce proceedings are concluded, your spouse is entitled to inherit if you die without a Will. Even after your divorce, unless you entered into a clean break consent order, your spouse can still try to claim against your estate.
Who will inherit your house if you die without a Will? There are many types of Wills. Its not a one stop shop fits all. You may be on your second marriage but have children from your first, that you want to leave some or all of your home to. You do not necessarily want your children to demand that your new spouse/cohabitee sell up in order that they receive their inheritance. There is a way of allowing your spouse/cohabitee to continue residing in the property, until their death or other triggering factors, before your children are able to sell it and receive their inheritance.