We spend our lives working to provide for ourselves and our loved ones – which often includes accumulating at least some wealth to pass on. So why is it that only 33% of adults in the UK get round to making a Will, with the rest leaving things to chance?
Most of us have at least some property to our name – whether it is a house or flat, savings, investments, a business, personal possessions or a life insurance policy. These assets form your ‘estate’.
Most of us also have people who depend on us and who would struggle if we were no longer around. It’s not therefore too difficult to see why everyone should have a Will!
Why you need a Will
The act of making a Will has a number of purposes:
- It ensures your estate is distributed in accordance with your wishes.
- It ensures that those you care about are provided for.
- It can set out your choice of guardians for minor children.
- It can set out trustees to manage your children’s property.
- It can set out your choices as to burial.
- It allows you to specify who should manage your affairs when you die.
- It can protect your assets for future generations after your death.
- It sends a message to those left behind.
It is the last point that is perhaps the most easily forgotten and yet the most important of all. What message do you want to leave on your death? Certainly, the absence of a Will says clearly to those left behind that you didn’t care enough to provide for them. But equally, dividing your estate in a way that results in months if not years of family disputes and heartache leaves a painful message to those already struggling to cope with their grief. Most of us would prefer to see family members united rather than divided during difficult times.
Making a Will is about so much more than distributing assets – it is about the legacy you leave behind for those you care for.
Making a Will: what you need to know
1. Steer clear of Mirror Wills
When many couples get around to the prospect of making a Will, quite often they will opt for the standard ‘mirror’ version. Mirror Wills are simply identical Wills that a couple make, leaving everything to each other.
Mrs Smith’s Will might specify: ‘I give everything to my husband on death, but if he dies before me it goes to my children.’
Mr Smith’s Will would then say: ‘I give everything to my wife on death, but if she dies before me it goes to my children.’
However, what most people don’t anticipate is that if you leave everything to your partner in a Mirror Will and they then need care in later life, the Local Authority is likely to take most of the assets you have worked so hard to build up together.
Even if your partner does not need care, a Mirror Will won’t guarantee that your children or grandchildren will receive any of your assets. In fact, your estate can pass sideways outside of your family if one of your children remarries, gets divorced or has financial difficulties.
See our post ‘Have you made Mirror Wills? Here’s why you need to get them changed – now‘ for more details.
Couples often make Mirror Wills with the best intentions, not realising the potential consequences.
2. Protect your assets
Whether you’ve accumulated just a little wealth or you’ve acquired a vast fortune, you’ve worked hard for what you have – and you probably have a clear idea of who you’d like to benefit.
Few people would like to think that their wealth might be used up almost entirely on their partner’s care fees after their death.
Similarly, few people would relish the thought of a creditor or disgruntled ex partner of their children stealing away a substantial share of their inheritance.
Sadly, these scenarios happen all too often. Careful planning and the use of trusts in your Will can protect your share of the family wealth and help to keep it in the family. Ask us about Care Fee Trust Wills and Bloodline Wills.
With careful planning, your Will can help protect your share of the family wealth for future generations.
3. Get the formalities right
According to figures from the CLS, around 38,000 families every year will go through a prolonged probate ordeal as a result of a poorly drafted or ineffective DIY Will. Up to 10% of the value of a person’s estate can be taken up by additional fees caused by an ineffective Will. With the average estate in the UK worth £160,000, this could equate to a bill of around £16,000 in unnecessary fees. Making a Will yourself without the help of an experienced professional (i.e. using DIY Will such as the type you can download off the internet or buy from a newsagents) can have disastrous consequences – see our article ‘When DIY Wills go wrong‘ for more details.
Making a Will with a professionally qualified, experienced Trusts and Estates lawyer doesn’t cost as much as you might think and can help avoid the possibility that your Will might be challenged (see below).
4. Take all necessary steps to avoid challenges
The number of Wills and estates that are being contested by disgruntled relatives is rising rapidly.
The Inheritance (Provision for Family and Dependents) Act 1975 allows certain people to make a claim against your estate, whether or not you had a Will. However, in the absence of a Will, it may be more difficult for the Court to know how you would have felt about any particular claim.
You can take a number of steps to minimise the possibility that someone might challenge your Will or claim against your estate. These include:
- Don’t make a DIY Will: For two reasons – first, a Court is far more reluctant to interfere with a Will if it has been made by a professional, and second, a Will drafted by a legal professional is more likely to comply with all of the legal formalities for a valid Will and is less likely to contain ambiguous language that could be challenged.
- Use a lawyer There are plenty of ‘Will writing companies’ offering their services and quite often, these look like a very affordable option. However, Will writing is unregulated – this means anybody can do it, whether legally qualified or not. Using an experienced lawyer to write your Will may cost slightly more but this pays off in the long run.
- Don’t disinherit: If there is someone in your family that you feel is less deserving or might squander the money you have worked so hard for, don’t disinherit them entirely – consider making some provision for them.
- Make a letter of wishes: A letter of wishes can accompany your Will and explain why you made certain decisions. Despite the wave of inheritance disputes, the Courts still place a huge degree of emphasis on testamentary freedom – as indicated in the recent Ilott case.
- Consider including a ‘no contest’ clause: A no contest clause, also known as a forfeiture clause, states that a beneficiary will forfeit their inheritance if they challenge the Will. If the beneficiary’s challenge is unsuccessful, they will lose their legacy. You should take professional advice on whether this is appropriate/necessary.
- Choose your witnesses carefully: If your Will is challenged, your witnesses may be called upon to give evidence. Choose witnesses who are likely to be still around on your death and likely to be able to give credible evidence.
- After making a Will, keep it updated: So many people see making a Will as a one-off event but you need to update your Will on any life events – children, marriages, divorces, house moves etc to ensure it still meets your needs. Even in the absence of such events, both the size of your estate and legislation will change. See ‘Do I need to change my Will?‘ for more details.
For advice on making a Will or to book an appointment, call us on 0800 788 0500 or email email@example.com – alternatively you can get your free copy of our information pack here.