While estimates vary, approximately half of all adults have yet to create a Will. But the reasons why are less clear. For those who believe cost is the main barrier, it is worth considering the number of wealthy celebrities who died without a Will in place, including Aretha Franklin, who passed away in 2018, leaving her four sons to deal with her estate. Individuals often cite reasons such as lack of money to pass on, or that they will prepare a Will one day; but in many cases, procrastination never galvanises into action.
In this article, we will explain the reasons why, if you have not already, you should consider a Will and the key factors to ponder when you do.
What is dying intestate?
For anyone who dies without a Will (formally referred to as dying intestate), the rules of intestacy come into force. The rules of intestacy contain a standard process for determining how the estate of a deceased individual will be handled and apportioned.
Under the rules of intestacy, an estate worth £270,000 or less will go to the surviving spouse. Any amount over this will be split – with the spouse receiving half, and the remainder going to children, grandchildren, or other direct descendants. In the absence of direct descendants, the surviving spouse will receive the whole estate. And if there is no surviving spouse, the estate will be passed to most likely, distant unintended relatives, or if none of those entitled are alive, ultimately the estate could end up going to the Crown as Bona Vacantia.
It is important to remember that without a Will, if the rules of intestacy apply, any wishes of the deceased will be disregarded, and hence their estate may end up being split in a manner at odds with what they wanted. This is why a Will is so important; it provides certainty as to the real desires of the deceased and prevents conflict between interested parties.
Making your Will count
While the absence of a Will can have unintended consequences for family members and other interested parties in the event of death, the same can be said of an invalid Will. A Will which does not conform to specific standards may not be valid and hence disregarded when the time comes. For this reason, it is in the best interests of your family, that you take the time to ensure you have a Will which is legally correct and can be relied upon after your death to reflect your wishes faithfully. For a Will to be considered valid, the Testator must be over 18, and the document must be:
· In writing
· Witnessed and signed by two people over 18
· Entered into willingly and voluntarily – there must be no duress or coercion
· Entered into by an individual with sound mental capacity
It is essential to review your Will periodically, to ensure it remains correct and reflective of your wishes. This may mean making changes if you move house, get married, the executor named in the Will dies, have a child, have a step-child, or on separation or divorce. Changes made will be done so in the form of a legal alteration referred to as a ‘codicil’; as such, the original document remains as it was and a record of amendments over time will be retained. If your life changes are considerable, it may be preferable to have a new Will drafted in the interests of clarity and reflecting your new situation – this will then override the previous Will, which can be destroyed.
Encapsulating your wishes faithfully
Some Wills may be relatively straightforward in nature; however, for those with business interests, investments, overseas property, valuable assets, large families, previous marriages, or if different jurisdictions or places of domicile apply, accurate drafting is crucial. It is for this reason that seeking the expertise of a specialist Wills Solicitor is so vital.
In our lawyers’ experience, before taking detailed and personalised advice, clients often overlook issues such as dealing with inheritance for vulnerable children who may not have the ability or capacity to handle their inheritance; or preparing a will which generally protects family wealth against unnecessary tax, or general third party threats in the long term.
A Solicitor who is well versed in Wills and Probate matters will ask you questions you may never have considered, thereby removing any ambiguity when the Will becomes effective. Complex Wills that are not drafted clearly can lead to contentious legal proceedings, which can cause familial discord and stress. Expert advice at this stage can avoid any such scenario, giving you the assurance that your affairs are in order to the greatest degree possible. DIY Wills, while saving money, frequently lack not only validity but the clarity necessary for an executor to fulfil their duties (and therefore your wishes), fully.
Death is not a subject we want to dwell upon, but by drafting a Will early in life, you will have the knowledge that should anything happen to you, your family are protected, and they will be spared any unnecessary financial or familial disagreement over your estate.
If you would like help with any aspect of Wills, Estate Planning, Power of Attorney, or any other matter, please contact us on 01202 802 807 to make an initial appointment with one of our expert Solicitors, Alexandra Livesey or Paul Solomons.