Town and Country Law helps clients with various aspects of financial planning, providing a full spectrum of legal services, including trusts, wills and lasting powers of attorney. This article will look at will writing, exploring the importance of leaving a will to ensure that the benefactor’s wishes are documented and adhered to.
People overlook writing their will for a variety of reasons. They may not want to contemplate relinquishing control of their property or be reluctant to face up to the reality of their own mortality. Whatever the reason, failing to write a will leaves the benefactor’s estate at risk. For many people, a will is the most important document they will ever write, determining how their property is to be divided and who will receive what when they die.
In essence, a will is a legal document that delineates how the deceased’s assets will be distributed. As it has no effect until the testator’s death, the document is fluid and can be changed as the testator sees fit. To be valid, a will must comply with stringent legal requirements stipulating the number of witnesses, etc.
A will includes directions on how the estate is to be divided following the testator’s death, naming executors and beneficiaries, as well as appointing guardians for any minors. A will can include provisions for the division of tangible property such as furniture and jewellery. It can also stipulate which sources are to be used to settle debts and estate taxes.
Whether married, single or divorced, or a parent or childless, everyone should consider making a will irrespective of their state of health. Without one, the benefactor cannot exercise full control of who receives their property, with their estate instead passing according to the rules of intestacy in their country. This could result in their assets being distributed contrary to their wishes. For example, should a deceased person have no living relatives, they will be unable to pass their wealth to charities, friends or other non-related persons without a will in place, meaning that their entire estate is likely to go to the state.
Where an individual dies with a will in place, the executor named in that will is granted authority to administrate the estate in a process called ‘probate’. The executor presents the will to receive authorisation to administer the estate. They must then determine all assets and liabilities, identify beneficiaries, make distributions, and file tax and other probate documents with the various institutions and government bodies. All of this must be completed within a set timeframe.
Selecting an executor is an important decision, particularly for those with significant assets. Depending on the size and type of assets involved, administering the estate may require considerable time and expertise. The role of executor is one that involves considerable responsibility.
For unmarried partners cohabiting, making a will is particularly important. Partners who are unmarried or who have failed to register a civil partnership cannot inherit from each other without a will in place, creating the risk that the death of one partner may create serious financial hardship for the survivor. For those with children, a will can also include guardianship arrangements in the parent’s death. Making a will can also be an effective means of reducing inheritance tax liabilities.
It is important for the testator to update their will periodically, particularly following significant life changes that may have caused a change in their priorities; for example, where a couple have separated and one partner now lives with someone else. In the UK, although there is no strict legal requirement to have wills drawn up by a solicitor it is prudent to do so, as it is easy to make mistakes. Disparities in a will could culminate in the document being deemed invalid or the estate being distributed contrary to the benefactor’s wishes.
