We know that most people have not written their Will. These people fall into two camps; the group who think it’s important, but haven’t got around to it yet, but hopefully they will write a Will at some time in the future. The second group are those who have the “why do I care? I’ll be dead anyway” approach. Although they’ve hopefully spent their life thinking of other people, they feel content simply letting their family and loved ones sort everything out once they are gone.
Unfortunately, they don’t understand that taking just 20 minutes now, can save their family from distress, acrimony, family feuds, and potentially expensive legal battles.
Surely I’m overstating the impact of not having a Will? Let me explain ten good reasons why you should write a Will today, based on our 15 years of experience in dealing with distraught family members whose loved one died without a Will in place.
1. Write a Will now and spare your family utter confusion
Unless you have announced to your family that you have chosen not to write a Will, they will assume that you have one in place. Unfortunately, few people choose to die intestate (without a Will), it’s something that just happens.
Bear in mind, your family may be grieving, especially if your passing was unexpected. What follows is your loved ones going through all of your important papers looking for the elusive Will. They may find a lot of other things, but they won’t find a Will.
They will curse your negligence of having died without a Will (even though they probably don’t have their own Will in place), and then start phoning around local solicitor’s offices. Days will pass by.
Your siblings and children will be asked to look online for a “Will Registry” in the faint hope that you not only wrote your Will, but you took the time to then register it with a central repository of Wills. Incidentally, there is no such thing. There is no Will Registry.
You family will then look for online Will services like the one at LegalWills.co.uk and ask us if there was an account for you. By this time, your family are frantic, and sadly, we are unable to help them.
At this point, your loved ones are coming to the realisation that no Will exists. But nobody is in charge either. You’ll see later in this article that appointing a person to take responsibility for everything is one of the most important roles of the Last Will and Testament. Without a named Executor/Trustee, many families fall into a chaotic mess.
It’s not unusual for family members to all start walking through the house helping themselves to all of those heirlooms that you may or may not have promised to them. And this is where the family fighting starts.
2. Avoid family fighting and possible legal fees
It is amazing how often a cordial family unit transforms from a Dr Jekyll to a Mr Hyde. The problem is that there is a family history, your loved ones now live different lifestyles and there is a lot of money at stake. We see it almost daily, like this case where two siblings sued each other over an inheritance and the entire estate was swallowed up in legal fees.
There are countless flavours of family fighting. We commonly hear of one sibling who has had everything handed to them over the years, the other one grafted without handouts, and now they need to share the estate. No matter how things are divided, both siblings feel aggrieved, and legal battles follow.
Bearing in mind that dying without a Will does not mean that everything automatically goes to your spouse. If you didn’t write a Will, your estate is usually divided between your spouse and children, even if those children are young. This situation was reflected in this article where a mother was advised to take legal action against her three young children or risk losing her home.
And what happens when you are living with a partner rather than formally married. Jill Dando and Stieg Larsson both died without a Will, and their estates went to their parents rather than their partners.
3. Name an Executor/ Trustee
Aside from deciding who will receive what from your estate, one of the most important elements of a Last Will and Testament is the naming of an Executor and Trustee. This person takes charge of everything right away.
The first important responsibility of the Executor is to secure all of the assets, so the ugly free-for-all of family members picking through household belongings can be avoided. Securing the assets may include changing the locks on a house, but it certainly involves preparing an inventory of assets.
The Executor will then have to probate the Will, which is the formal process by which they are granted the authority to act as the estate administrator. The Executor is given a “grant of representation” which will allow them to go to the banks and other financial institutions to gather the funds in the accounts.
If you write a Will, you can decide who this person will be, and it is not always the most obvious choice. You need to select a person who is financially responsible, trustworthy and somebody who can deal with the family politics. It also makes sense to appoint somebody young enough to deal with what can at times be an arduous task, and of course, somebody who isn’t grief stricken at your passing.
You can if you wish enlist the services of a professional estate trustee, but this is usually an expensive option. In fact, there have been many exposés highlighting the egregious charges of professional Executors including firms of solicitors.
If you didn’t write a Will, the Executor will be appointed by the courts, but there is a good chance that this appointment wouldn’t match your own selection. Most importantly, the court appointment can take a long time, so in the meantime, there is nobody to assume responsibility for the estate.
4. Describe the distribution of your estate
Now we are onto the meat of the the Will, and why most people write a Will in the first place. Let’s start by dispelling the most common misconception. If you are married with children, your spouse does not automatically receive everything. There is actually a really useful, interactive tool on the Gov.UK website that allows you to plug in the structure of the family and the size of the estate, and it spits out the distribution of the estate.
Bear in mind, if you are researching intestate succession (who receives what if there is no Last Will and Testament) the UK laws changed on October 1st 2014, so anything written before that, is likely to be wrong.
One key point in the distribution of your estate if you didn’t write a Will:
If you are in a common-law relationship, your partner will receive absolutely nothing.
If you die without a Will and you are married with children then your spouse will receive all of the assets up to £250,000 as well as all of your personal possessions. Everything above that will be divided, with your spouse taking half and your children share the remaining half.
If any of your children pre-decease you, then their children receive their share instead.
If you have no spouse and no children, then things get really interesting. Your entire estate will go to your parents, if there are no parents, then your siblings, if there are no siblings, then grandparents, and then aunts and uncles.
If there are no living relations, your entire estate goes to the crown.
If you write a Will of course, you can use some intelligence to this estate distribution. Is equal distribution to your children really fair? has one child received more help throughout their life than the other? has one child married into a wealthy family? has one child simply had some bad luck? some health conditions? There are many, many ways where an equal distribution of your estate between your children is not the fairest solution.
Your Will also gives you an opportunity to be creative with specific gifts. Maybe your friend always admired your piano, or your record collection. Maybe your vintage car should be given to a local charity or museum. Who should receive your signed Winston Churchill cigar box? or your Stanley Matthews FA Cup winners medal?
5. Make a charitable bequest and acknowledge friends in a way that better reflects your values
Many people feel that they have fallen short of their charitable contributions throughout their life. It can be difficult to find spare money on a regular basis when we have our own financial obligations to meet.
Your Will is a fantastic way to make a significant charitable impact, without dramatically affecting your family.
The strategy of including a charity in your Will is known as “planned giving”, and every charity website will have a page explaining how you can write a Will and include a charitable bequest. Like this one at MacMillan Cancer Support:
Within our service at LegalWills.co.uk we specifically prompt you to think of charities when distributing your possessions:
You can leave a sum of money, an object (like your car) or a percentage of your estate. Leaving 5 percent of your estate leaves your family with 95 percent, but can still be a significant charitable bequest.
6. Create a trust for a young child
If you do not write a Will and your child receives an inheritance, their windfall will land in their lap at the age of 18. Most people regard this as rather young to responsibly manage a significant sum of money, or a property. Writing a Will allows you to defer this age, to 21, or 25 or an age at which you feel that they would be ready to receive their inheritance.
All the time the bequest is held in trust, it is managed on the child’s behalf. It can be used for the well-being of the child, for example, for education or medical needs, but the main responsibility of the trustee is to protect the balance of the trust fund so that it is passed to the child at a more appropriate age.
7. Name a guardian for a child
If something were to happen to both parents of a young child, and you did not write a Will, then friends and family members will apply to the courts for the guardianship of the child. A judge will then attempt to make the best decision based on the information in front of them. Clearly, the judge will not know any of these people, and so will take into consideration things like age, income, standard of living and relationship to the child.
If you write a Will, you can name the guardian for your children. Your decision may not be an easy one, but you are in a better position to make the appointment than a judge in a courtroom.
You may consider shared values, religious or moral beliefs, the integrity of the people involved and your interactions with your friends and family members. A judge may select your sister, who may be the last person on earth you would want raising your children.
The guardianship appointment in your Will is the most important reason for young families to prepare their Last Will and Testament. There is a common misconception that you write a Will when you retire and start to contemplate death. If you have young children, please, please write a Will.
8. Create lifetime interests
This is a critical tool if you are in a second marriage or have children from a previous relationship. If you don’t write a Will, the vast majority of your estate will flow to your spouse. It will then become part of their estate. When they die, a few different things can happen but usually your children are not part of the succession plan. Your spouse will either die without a Will in which case everything flows through the laws of intestate (your children will receive absolutely nothing), or they die with a Will and leave everything to their own children (with the same result for your children).
If you write a Will you can look after your spouse, but give everything to them in trust (including your house). When your spouse dies, everything that passed from you to them, now goes to your children. This is called creating a lifetime interest. For example, you can allow your spouse to live in your house for the rest of their life, but when they die, it goes to your children, thereby protecting their inheritance.
If you are in a relationship where your spouse is not the biological parent of all of your children, it is critical that you write a Will.
9. Describe alternate plans
You probably think it is obvious who will receive what from your estate. You think it will all go to your spouse, or maybe to your children. It is even possible that the intestate succession laws will distribute everything exactly how you planned to divide it all up (although this is unlikely). But what about the backup plan? How would you want everything to be distributed if you and your spouse were involved in a common accident? or one of your children pre-deceased you? Things are not quite so obvious in this case.
There tends to be less variability in distribution plans for people in “two point four children” families. But backup plans vary quite widely. Would everything then go to charities? would it then all pass to your siblings? Do you have grandchildren? or parents that need taking care of?
It is highly unlikely that your alternate plan matches the laws of intestate succession. Having a backup distribution plan is one of the key features of a well written Will.
10. Why now? because later is often too late.
You may find some of this information compelling, and be convinced that you should probably write a Will. But if you’re like everybody else, you’ll think that it’s something that can wait. Maybe next week, or maybe when you get back from holiday, or maybe after you have your second child, or when you buy the house.
This approach of waiting for the right time originated from the days when people always went to a solicitor to write a Will. It was inconvenient, expensive and with any luck, only done once in a lifetime.
Thankfully nowadays there are more convenient options like the online service at LegalWills.co.uk that allow you to prepare your Will as soon as you become an adult, and then easily update it throughout your life to reflect changes in your personal and financial situation. You simply login to your account and make the change, like a new charitable bequest, or a different alternate Executor. Print off a new Will, sign it in the presence of two witnesses, and your Will is now up-to-date.
You have no way of knowing how long a Will is going to reflect your circumstances. Any change to anybody named in the Will may prompt an update, but it doesn’t make sense to wait until your life reaches a point of stasis. It will not happen. It certainly doesn’t make sense to wait until you are old before you write a Will. You must have the capacity to prepare your Will, and once you start to lose this capacity, it is too late.
So write a Will today, update it through your life, and save your family unnecessary distress.
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