Is it the notion that it feels too morbid or too far into the future that stops people or is it just that not enough is known about the process and the consequences of not planning ahead? We’ve called on our in-house expert, Associate Partner, Lanka Bandara, to share her thoughts and to help people understand it all a little more clearly.
So, what are the benefits of making a Will?
1. If you want to control who inherits your assets and who has access to your assets when you die, make a Will.
A person or persons who inherit your assets are called Beneficiaries. A person or persons who have access to your assets are called Executors. If you do not make a Will naming these individuals something called the Rules of Intestacy would determine who would be the Beneficiaries and your Personal Representatives (the equivalent of Executors if you had made a Will).
What are ‘Assets’? Examples of assets are things like your home or any other properties that you own, any savings (including retirement savings) held in banks or building societies, investments and down to specific pieces of jewellery or artwork.
In the UK, if you die without a valid Will, your assets will pass following the Rule of Intestacy. The rules that apply to your Estate will differ depending on who you leave behind. If you were married or in a Civil Partnership (CP) and didn’t have any children, then all of your assets would pass to your spouse/CP. Now this may be ideal for some but may not be for others. Here are a few instances where this may not be ideal:
If the deceased was married/CP and had children, then the Rules of Intestacy will distribute the deceased’s assets in certain portions between the surviving spouse/CP and the children. Again this may not be suitable where for instance, the assets also include the residence and would mean that children and spouse/CP would have to share the ownership of the residence. Sharing the ownership of the residence with children tends to lead to more complications than not. For instance, if the surviving spouse/CP wished to sell or rent out the residence, they would need the consent of the child/the trustee. They will not have complete freedom to do as they wished. Also, if the child/children wished to cash in their inheritance, they could force a sale on the residence, regardless of how small their share of the property was. This leaves the surviving spouse/CP exposed to the risk of being forced out of their own residence after the death of the deceased.
Leaving a valid Will allows you to leave your assets in a way that avoids any of the unwanted complications mentioned above.
2. If you’re a parent and want to decide who would be named Guardian to your child or children, make a Will.
Parents of minors (those aged under 18), can use Wills to appoint the main and substitute Guardians to their children. If a child survives both parents and neither parents have appointed guardians then the court will need to decide as to who is to be appointed to this role. This process may lead to child protection services being involved as well. All of this can be avoided if the parents had simply appointed guardians and this could be easily done in the Will.
3. If you’re a parent and would like to name who would look after funds and/or assets left to your children, make a Will.
Another question that parents of minors may also have is as to who would look after the funds/assets left to their children. Preparing a Will will also enable you to consider who to appoint to this role (as ‘Trustee’), what the role entails and whom to appoint as substitutes if need be.
It is always best if you could avoid appointing the same person to perform the roles of a Guardian and a Trustee and instead appoint two separate people to these roles. This will help avoid conflict of interest issues cropping up and help maintain a healthy level of transparency when dealing with the trust funds.
4. If you’re unclear on Inheritance Tax (IHT) and the implications on how much would actually be left to your loved ones, making a Will can help you navigate this.
Preparing a Will helps you review the Inheritance Tax liability that may arise on your death and how much would be left to your loved ones once the dues are settled. It will also help you see the options that may be available to reduce this liability going forward.
5. Making a Will helps to minimise complications between those left behind after your death
Losing a loved one is a difficult enough time without legal complications on top.
Given the fact that it is becoming increasingly more common for people to remarry, to have children from more than one partner, it is becoming ever more important to have a Will done so that you could ensure that your loved ones are not faced with any complications and issues after your death.
As more of us now own property outside the UK, preparing a Will should also help identify the concerns and issues that need to be dealt with in order to minimise the complications that would otherwise arise on death.
Statistics have shown that the majority of contentious matters in court today are those that involve either self-made Wills or Wills prepared by people who are not skilled or experienced in this area of law. It is ironic how some people are happy to spend the money required to buy or sell one property but do not give much thought to the need of preparing a Will through someone who is suitably qualified or experienced. Needless to say, the effects of a badly drafted Will is usually not known until after the person has died.
What do you think puts people off writing a Will?
I think the most common reason is that most people do not think that they need one just yet. The second common reason is that they know they want one but are too busy to get one done.
Most people spend years accumulating assets and relationships and do not really think about preparing their Wills until either their accountant pushes them to do so or if a death in the family or known person shows them how things could go wrong if they did not have a valid Will.
What is one of the most common concerns or questions from people wanting to create a Will?
I often hear parents have many questions about how to decide on who to appoint as guardians to their children. This is such an important and emotional decision. No one wants to think about something quite so upsetting but it’s important to approach this with a pragmatic mind. I always advise clients to think about appointing someone that would be able to maintain as much of the status quo as possible. This may mean someone who already has a similar lifestyle, same amount of kids and pets or that they live in the same country/neighbourhood or are of the same age and personality etc. Keeping life as steady as possible (especially for younger children) when they have experienced a life changing event such as the loss of both parents, is vitally important.
It is always best for both parents to appoint one person as the main guardian and then to appoint one other person as the replacement guardian. The role of the guardian will not come into effect until both parents (or all of those that have parental responsibility over the child) die. In that case, if the parents had appointed two separate people as main guardians and if these two people were unable to come to an agreement in respect of any issues, this could lead to the court being involved in making the final decision.
It is also best to avoid appointing guardians to act as trustees as well. The role of a trustee is to supervise and manage the trust assets, whereas the role of the guardian is to provide for the day-to-day care of the children. If the guardian required funds for the care and maintenance of the children, this would be communicated to the trustee, who would then use the trust assets to provide for these needs. Allowing one person to act as both trustee and guardian is more likely than not to make the process a lot less transparent.
How does Comptons make the process of writing a Will easy?
First and foremost, Comptons is a people-first law firm. We truly care about helping people on matters of law that can often seem confusing or even daunting. Our job is to take our clients through such processes step-by-step, to ensure they are super clear at every stage, achieving the outcome that they really want.
As Head of the Private Client department at Comptons, Will drafting will always be done by me. I’m a Full STEP member, also known as a TEP. TEPs are internationally recognised as experts in their field, with proven qualifications and experience. The Society of Trust and Estate Practitioners is a global professional body, comprising lawyers, accountants, trustees and other practitioners that help families plan for their futures.
What is the process of making a Will at Comptons?
First it’s important to know, it’s easier than you think. From start to finish, making your Will with Comptons can take as little as three weeks and I guide you through each step to make it as stress-free as possible. We’re available throughout the process, to answer any questions you might have. So here’s how we’d go about it:
At Comptons, we charge no extra fees for storing your original Will(s).
* For more on the IRN Wills research report, click here.
Estate Planning and Wills, Lasting Powers of Attorney, Private Wealth, Probate and Attorneyship