Explained: What is a Will and Do I Need One?
Who Should Make a Will?
I must admit to thinking about my demise on a very regular basis. Indeed, it's the subject of my most common dream. This started in my mid 40s, after the onset of what I can only describe as a mid-life crisis of confidence. Both my parents became ill and my father passed away in 2013. The death volume was ramped up in my head and I began worrying incessantly about how my family would cope without me. One of my biggest worries has always been who would show my boys how to be men in my absence?
My wife and I executed our first Wills whilst in our 30s, some 20 years ago. This decision was completely driven by my wife (in my experience, this is a normal scenario). She knew of it's importance and so also insisted my parents formalise their wishes. Like many of you, my approach was to amble. Since that time, we have made amendments and are currently in the midst of agreeing changes to be implemented soon.
A Will or testament is a legal document by which a person, known as the testator, expresses their wishes as to how their property is to be distributed at death. It should name one or more persons as executor to manage the estate until its final distribution.
Anyone who is in a relationship, has children, owns assets or a combination thereof, should, regardless of age, have a Will.
But we know that many struggle with the process. Research, carried out as part of the British Public Attitudes Survey (2012) revealed:
Only one in three people had a Will;
Only one person in four had registered for organ donation;
Only one in 20 had an advance care plan, setting out how they would want to be cared for if incapacitated;
Only one in 10 people had made a plan for their funeral;
Almost seven out of ten people admitted they had never discussed anything about Wills or funerals with anybody.
The most common reasons for an unwillingness to broach the subject of death include:
I don’t have the time
Well, the answer to that is stop the procrastinating and make the time; it really does not take that long at all. Don't leave your relatives fighting over property and possessions because you did not make your wishes abundantly clear via a Will.
Make time, or run out of it.
I don’t want to think about dying
This is probably the most common reason people don’t do some estate planning. But, it is not all about dying; testamentary capacity is a crucial element in Will making. Plan whilst still completely compos mentis. Estate planning can challenge your thinking by having to consider things like who will get custody of your minor children, who gets your money and property and where you’ll want to be buried/cremated.
Estate planning is uncomfortable, but highly necessary and can only be completed with the capacity to do so.
I just don’t understand Wills or the process for making one
TWB are specialists in testamentary law. We’ll analyse your estate and help you to understand your choices. You may not have an estate large enough that requires inheritance tax planning and/or trusts, but that does not negate the need for a Will with provisions clearly specified. If you become incapacitated from an accident, who will manage your affairs? Do you want to be kept on life support?
TWB are specialist, very experienced and are best suited to help you get to grips with the process.
I don’t think I have an estate to worry about
Many assume they don’t have enough wealth to worry about estate planning. You have an estate if you own pretty much anything. Something as simple as owning jewellery, family photos, a car or a home can be a problem if you don’t decide who will receive it when you pass. If you don’t have a Will or named beneficiaries, the probate process could be very messy for your survivors.
To reiterate, anyone over the age of 18 and who has capacity can make a Will. I strongly recommend doing so to anyone in a relationship, who has children, assets or a combination of all three. And importantly, Wills are not for just sorting out finances and property in the event of death; you can specify what should happen if you become incapacitated (known as an advanced decision, advance directive or living Will), appoint guardians for your children and even leave money to your friends or a charity.
The thing to keep in mind is that without a Will, you run the risk of the government deciding these things for you. Moreover, you also sew the seeds of conflict that could take root among those you leave behind.
Important reasons you should make a Will
You decide how your estate will be distributed
A Will is a legally-binding document that lets you determine how you would like your estate to be distributed after you die. Also, as stressed above, having a Will helps minimize any family fights that may arise after you have passed away.
You decide who will take care of your minor children
Having a Will allows you to choose the person you want to raise your children or, ensure it is not someone you would not want to assume the responsibility. Without one, the court will select a family member or a state-appointed guardian.
To avoid elongating the probate process
Most estates must go through the probate process, with or without a Will. Having a legally valid Will speeds up probate and informs the court how you’d like your estate to be distributed. If you die intestate (without a Will), the court will decide how to divide estate by following the rules of intestacy.
Mitigate estate your tax liability via charitable donations
Anything you leave to charity is free of inheritance tax and of course benefits a good cause of your choice. And if you leave at least 10% of your estate to charity, inheritance t ax is calculated as 36% rather than 40%.
You decide who will wind up the affairs of your estate
Because executors play the biggest role in the administration of your estate, you’ll want to be sure to appoint people you trust, is organised and committed. Executors make sure all your affairs are in order, including paying off bills, canceling your credit cards, and notifying the bank and other business.
You can disinherit individuals who would otherwise stand to inherit
You can disinherit individuals who would otherwise inherit your estate if you die without a Will. Absent a Will, your estate may end up on the wrong hands or in the hands of someone you did not intend, such as a spouse you are separated from, or a child or sibling you no longer have a relationship with with.
A Will is never set in stone whilst you are alive and have capacity
A good reason for having a Will is that you can change it at any time while you still have capacity. Life changes, such as births, deaths, divorce and an inheritance can create situations where changing your Will are necessary.
Because tomorrow is not promised
Sometimes the realisation that a Will is necessary comes too late – such as when an unexpected death or disability occurs. To avoid the added stress on families during an already emotional time, speak with TWB to help you draw up a basic estate plan as a minimum, before it’s too late.
CONTACT TWB
It is always important to review your circumstances as family life evolves and when cultural, political and tax legislation changes occur. Keep up to date with developments and seek expert advice from firms like TWB, but know that TWB is at the forefront of its profession.
Estate Planning is an integral part of our service. As well as minimising the effects of IHT, many families wish to ensure the preservation of their wealth through several generations by making provision for children, whilst also considering events such as divorce, bankruptcy and accounting for later-life care. We have written thousands of Wills and helped countless clients with IHT planning, Lasting Powers of Attorney (LPA) and much more.
Contact Jules Jack for more information: julesj@twb.org.uk - 020 8920 3360