Having a Will is more important than ever, yet 54% of adults and almost 60% of parents in the UK do not have one in place.
Many people continue to believe in the idea of ‘common law marriage’ – that their assets will simply transfer to their partner even though they are not married and have not written a Will. Others believe that when they die their family will decide how their assets are distributed between them. This is not the case, and it is the intestacy rules that govern what happens to your assets when you die, irrespective of family wishes.
With this in mind, it’s clear why it is so important to have a Will and why it’s crucial to keep it up to date. Howell Jones Partner Jess Buttaci explores the key life events that should prompt you to think about writing or updating your Will.
If you do not have a Will and you die before your children are 18 years old, there is no way to ensure that they are provided for and brought up in accordance with your wishes. Writing a Will allows you to set out what you want to happen to your children and choose guardians for them. You can also specify what you would like to happen in the event that your guardians were to separate or divorce.
You can also set the age you would like your children to inherit. It is not legal for someone under the age of 18 to inherit and the money must be held in trust. However, you can decide that you want your children to inherit when they reach a more mature age, such as 25.
If your child may not be able to manage their inheritance or personal well-being as a result of a disability, you can make provision for this in your Will also, for example by nominating a guardian.
Buying a Property and Living Together
You may decide that you are happy for the intestacy rules to apply if you buy a property on your own and you do not have a partner or children to consider. However, you may want to provide for those who are close to you who would not inherit under the intestacy rules. For unmarried couples, it is of vital importance that they make provision for each other, particularly when buying a property or moving in together.
Cohabiting couples are not entitled to the same legal rights on death that spouses and civil partners are, and will not inherit under the intestacy rules. It is important for cohabiting couples to determine whether they own their property as joint tenants or tenants in common. If the property is owned as joint tenants, they own an equal share of the property irrespective of their individual contributions. If one joint tenant dies, the whole of the property passes automatically to the other, irrespective of what is written in their Will or the intestacy rules.
Alternatively, properties can be owned as tenants in common. In this case, each tenant owns their specific share and they are free to leave their share to whomever they choose when they die. If they die intestate, then their share will pass according to the intestacy rules. Consequently, their surviving cohabitee will not be entitled to their share in the property and this could result in the property having to be sold. The survivor, could, potentially bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for financial provision, but this is a lengthy and costly process.
Children from Previous Relationships
Without a Will, it can be difficult to ensure that your children from previous relationships are provided for when you enter new relationships. Trusts are an effective solution and allow you to provide for your new partner while making sure that your children from previous relationships are also looked after.
For instance, it is possible to leave your estate in trust for your new partner for their life and then when they die, your assets pass to your own children. If you wish to create a trust it is important to obtain specialist help from a solicitor experienced in this area, such as a member of the Society of Trust & Estate Practitioners (STEP).
When you marry or enter a civil partnership, any existing Will that you have made is automatically cancelled.
If you and your partner want to make a Will, but you are not married or in a civil partnership yet, it is possible to include a special clause in your Will stating that it is made in contemplation of marriage or civil partnership. This will prevent it from being cancelled once you marry or enter a civil partnership.
Getting Divorced or Separating
If you don’t have a Will or you have an existing Will that leaves everything to your spouse, it is important to rectify this if you intend to separate or decide to divorce.
If you have a Will, it remains valid and therefore, if something happens to you before you obtain the final order on divorce (previously called decree absolute), your spouse will receive everything under your existing Will. Similarly, if you do not have a Will and something happens to you before your divorce is completed then the intestacy rules will apply, and your spouse will benefit in priority over your new partner, your children, parents or siblings.
A Will gives you the opportunity to set out your wishes for how your estate is settled on your death. Without a valid Will, you are open to the intestacy rules, and with an outdated Will, your nearest and dearest may be left with nothing. As shown, it is best to take control and get a Will in place and review it to check that your wishes remain the same.