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The Importance of making a Will

30th September 2019 by Kate Mansfield

Categories: What's New?
Tags: drafting a will, importance of a will, lasting power of attorney, wills

Research* has found that 54% of the British adult population do not have a Will, and 5.4 million people have no idea how to make one. The research also states that nearly 60% of parents don’t have a valid will, meaning they either don’t have one at all, or the will they do have is out of date.

Everyone should have a Will. It’s simple to do and gives you the peace of mind that, when the time comes, you are leaving your affairs in order.

Below we answer some common questions relating to Wills, some of which may surprise you.

It all goes to my wife / husband doesn’t it?

In a simple answer, no.

Just because you are married or in a registered civil partnership does not automatically mean that your surviving spouse or partner will inherit everything.

Imagine you are married with two children, but died intestate.

You own a house which is in your sole name worth £1m and investments worth £500,000. Under intestacy rules, your spouse is entitled to the first £250,000 and half of the balance £625,000, totalling £875,000. It is not enough for your spouse to retain the house, let alone have any capital to pay for its upkeep. There will be a tax bill for the children’s share as it will be above the available thresholds. Your spouse might be left with no alternative than to make a claim against the Estate for further financial provision, potentially entering legal proceedings against their own children, who would be separately represented. Even if everything is agreed, out of Court, there could be expensive legal fees, along with stress and worry that such proceedings would entail.

We have a ‘common law marriage’?

Contrary to what many believe, there is no legal significance to the term “common law” wife or husband when it comes to intestacy. If you are not married or in a registered civil partnership your partner does not come within the intestacy provisions. This can be a stressful experience, worrying about how they are going to cope financially, at a time when they are grieving the loss of a loved one.

What about the children?

Under the intestacy provisions children inherit at the age of 18, potentially an issue if they are not sufficiently mature to manage what could be a sizeable inheritance? Bad choices could be made, affecting their lives going forward. Surely much better to put in place a Will where you can provide for your children in a controlled manner and perhaps delay the age at which they will have complete control over their inheritance. You can appoint legal guardians if they are under 18 and appoint trustees, people that you choose and trust, to look after your children’s money.

Second marriages

We live in a society full of complex family arrangements. We may marry more than once, having children and acquiring step-children as we go. If we don’t plan, things can get complicated on death. Quite often where second marriages are involved each spouse is concerned to ensure the security of the survivor whilst at the same time protecting their own children in relation to the assets brought to the second marriage. The inclusion of a trust in a Will can achieve the desired result, providing reassurance for the surviving spouse but at the same time guaranteeing the ultimate destination of assets. The position is clearer for everyone, which can be particularly important when family relationships are not always harmonious.

And who could forget Inheritance Tax (IHT)?

Firstly, if you are married or in a registered civil partnership you can give anything to your spouse or civil partner and it will not be subject to IHT.

In addition we each have a Nil Rate Band (NRB) which currently stands at £325,000 (which can be reduced by gifts made within 7 years of death).

In April 2017 an additional allowance was introduced known as the Residence Nil Rate Band (RNRB). This is currently £150,000, rising to £175,000 by 2020/21.

When added to the NRB threshold of £325,000, it will allow each individual to pass on £475,000 with no tax payable or £950,000 per couple. By 2021, the tax-free limit will be £500,000 each, or £1m for married or civil partners.

In order to qualify for the RNRB, you have to own (or have owned) a property or an interest in a property which has been your residence and you must leave it to descendants (children, grandchildren, step-children are all included).

Owning or having an interest in a business brings other headaches when death occurs.

Who will run the business after you have gone? How do you deal with the issue of having children, some of whom are involved in the business and some not? Is there a Partnership or Shareholder Agreement in place?

Clear careful planning is required rather than leaving it to the uncertainty of the rules of intestacy. Having a well drafted Will can not only address the practical issues, it can also ensure that you are taking advantage of the generous Business Property Relief (BPR). If your business qualifies those assets could be eligible for either 100% or 50% relief from IHT.

Convinced?

Clearly there is a lot to consider but don’t let that put you off, or let the law decide what happens to your estate. Taking proper advice from a suitably qualified lawyer specialising in such matters can leave you with a Will and peace of mind that, when the time comes, you are leaving your affairs in order and you may have saved some tax to boot!

If you would like to write a Will or update your Will please contact Kate Mansfield on 01202 755980 or email k.mansfield@laceyssolicitors.co.uk

* Royal London