Do I Need to Make a Will?
Heather Lally and the Trusts and Estates team outline the considerations and importance of making a will.
Ask yourself the following:
- Are you over the age of 18?
- Do you have assets?
- Do you have children under the age of 18?
- Are you married with children?
- Do you have an unmarried Partner?
- Have you re-married?
- Do you have children from different relationships or step children?
- Are you unsure who will benefit from your estate if you don’t have a Will?
If you answered yes to any of the above questions, it is likely that you will need a Will or at least a review of your existing Will.
Most people are aware that a Will is a legal document which can be prepared by someone over the age of 18 (with the exception of a person in the Armed Forces who can make a Will at any age). A Will confirms who will deal with your estate after your death and who will benefit from your estate.
Things That Not Everybody is Aware of When Making a Will
Appoint a Guardian
You can appoint a guardian for your children in your Will, this passes the parental responsibility that you have over your child to that guardian. Such parental responsibility is important to be able to consent to medical treatment if needed for your child, access School reports and such like. Without a guardian appointed by Will, if there is no surviving parent or anyone else with parental responsibility, a Court Order would be needed to obtain this, which is an avoidable expense and can result in delay in being able to assist the child.
Intestacy Rules
Without a Will, assets will be distributed in accordance with the rules of intestacy. Under these rules only family members can benefit from your estate. There is no such thing as a “Common Law Wife / Husband”. The rules do not make any provision for partners who are not married or in a civil partnership, friends or charities to receive any assets from your estate. If you are married with children your spouse may not receive the entirety of your estate, it depends on the value of your estate. If you have no children, then the rules will look to parents, then siblings and nieces and nephews and then further along the family tree as required. Sometimes quite distant relatives may be in line to benefit who you may never have met. If there are no relatives the estate passes to the Crown. Most people when asked would prefer to have a choice as to where their assets go!
Revocation
Marriage revokes a Will, if you have made a Will and then married, unless that Will was prepared and states that it was in contemplation of that particular marriage, the Will will be revoked. This can be problematic in cases of Predatory Marriage as the capacity to marry is a lower standard than testamentary capacity to make a Will.
Claims against your Estate
Certain categories of people, including generally spouses, people who have lived with you for 2 years prior to your death, children and step children can make a claim against your estate if your have not benefited them in your Will or if they do not benefit under the intestacy provisions. Advice should be taken to limit the impact of any such claim.
Estate Planning
A Will can play an important role in planning your estate to be distributed in the most inheritance tax efficient way possible.
Legal Advice for Creating a Will
If you would like assistance in relation to the preparation of a Will or the review of an existing Will, please do not hesitate to contact our: Trusts & Estates Department on 01244 354800 or email: heather.lally@dtmlegal.com or information@dtmlegal.com
This information is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.
