Why You Need a Will: Protecting Your Family's Future

What is a Will?

A Will is a legal document that allows a person (referred to as the ‘Testator’) to set out how they want their assets and possessions to be distributed after their death. Under their Will, the Testator can appoint an Executor to manage the estate and carry out the instructions outlined in the document.

How does a Will protect the Testator’s family?

Having a professionally drafted Will allows you to:

• Clearly distribute your assets to whom you wish - one of the primary reasons for having a Will is to specify who should get your property and assets after you die. Without a Will, your estate will be subject to the laws of intestacy (see below), which may not align with your wishes. A valid Will allows you to provide for your spouse, children, and other loved ones, minimising the potential for disputes and conflicts among family members.

• Provide for guardianship for young children - a Will is essential for appointing a guardian to care of minor children in the event of both parents dying at the same time. If no guardianship provision exists, the Court may decide who should look after your children based on their interpretation of their best interests, which may not align with your wishes. By naming a guardian in your Will, you retain control over this fundamental decision, ensuring that your children are entrusted to someone you deem suitable to raise them.

• Minimise inheritance tax (IHT) – an experienced Solicitor can advise you on how to minimise IHT and death-related expenses, ensuring that more of your assets go to your family rather than being depleted by administrative costs and tax obligations. Through strategic estate planning techniques, such as creating trusts, establishing charitable gifts, or taking advantage of tax exemptions, you can potentially reduce the tax burden on your estate, leaving more resources for your loved ones.

• Avert family disputes – rows over inheritance can be emotionally and financially devastating. A Will provides clarity and reduces the likelihood of conflicts among family members. By outlining your wishes explicitly, you leave little room for ambiguity or misinterpretation.

• Provide for unmarried partners - under English law, unmarried partners do not have automatic inheritance rights. Without a Will, your partner may not receive any part of your estate upon your death, potentially leaving them financially vulnerable. Creating a Will allows you to protect your unmarried partner's interests by specifying how you want your assets to be distributed. This ensures that your partner is provided for, recognising their contributions to your life and relationship.

If I do not have a Will, how do the rules of intestacy apply?

In England and Wales, the rules of intestacy determine how a person’s estate is distributed if they die without a valid Will. The order in which an estate is distributed is as follows:

• Spouse or Civil Partner - if the deceased had a surviving spouse or civil partner but no children, the entire estate passes to the spouse or civil partner. If the deceased had a surviving spouse or civil partner and children, the spouse or civil partner receives a statutory legacy (currently £270,000) and all the personal possessions. The remaining estate is divided equally between the spouse or civil partner and the children.

• Children - if the deceased had children but no surviving spouse or civil partner, the estate is divided equally among the children. If a child has already died, their share is divided among their own children (the deceased's grandchildren).

• Parents - if there is no surviving spouse or civil partner or children, the estate is divided equally between the deceased's parents or the surviving parent.

• Siblings - If there are no surviving spouse or civil partner, children, or parents, the estate is divided equally between the deceased's siblings. If a sibling has already died, their share is divided among their own children (the deceased's nieces and nephews).

• Grandparents - if there are no surviving spouse or civil partner, children, parents, or siblings, the estate is divided equally between the deceased's maternal and paternal grandparents.

• Aunts, Uncles, and Cousins - if there are no surviving spouse or civil partner, children, parents, siblings, or grandparents, the estate is divided among the deceased's aunts and uncles. If they have already died, their share is divided among their own children (the deceased's cousins).

• If no relatives can be found, the estate passes to the Crown.

It is important to note that the intestacy rules may not reflect your wishes, and they may not adequately provide for unmarried partners, stepchildren, close friends, or favourite charities. To ensure your assets are distributed according to your specific desires, you must have a valid Will.

Concluding comments

Having a valid Will is crucial for protecting your family's interests. By creating a Will, you can ensure a clear distribution of assets, appoint guardians for your minor children, minimise estate taxes and expenses, avoid family disputes, and safeguard the financial well-being of your unmarried partner. Failing to have a Will can lead to unintended consequences, leaving your loved ones without the support you would have wanted to provide. Taking the time to create a Will allows you to have peace of mind, knowing that your wishes will be respected and your family protected.

For a free consultation on creating a Will and/or estate planning, please call our understanding and caring family law team on 0208 300 6666.