A will gives you control over who is to receive your money and property after you die. Many people wrongly assume that, even if they haven't made a will, all of their property will automatically pass to their spouse or partner when they die. In fact the intestacy rules (which apply when someone dies without making a will) may mean that your spouse does not necessarily receive the whole of the estate when you die and may have to share it with other relatives. This can be particularly harsh if you have remarried and your spouse does not get along with your children from a previous marriage or if you do not have children as your spouse may then have to share with brothers and sisters and even aunts and uncles. This could result in your spouse having to sell the family home to satisfy the other relatives entitlements under the intestacy.
What if I am not married to my partner?
If you are not married to your partner they would not automatically receive anything from your estate, if you have not made a will, and may have to bring a claim against your estate to ask the Court to make provision for them. The amount that they will receive will be entirely at the discretion of the Court and the procedure is complicated, lengthy and costly.
How can we protect our home if one of us needs residential care?
If you jointly own your home then a carefully drafted will can provide for a share in the family home to pass into a trust when the first one of you dies. This would provide for the survivor to live in the home for as long as they wish and can even allow the survivor to move home or downsize whilst ensuring that the capital is preserved for the intended beneficiaries and cannot be seized to fund the care fees of the survivor.
How can I provide for my spouse but also ensure that my children from a previous relationship benefit when my spouse dies?
A will can provide that your assets can be used for the benefit of your spouse during their lifetime but that, upon their death, the assets are to pass to your children. If you do not make a will and your spouse receives the majority of your estate upon intestacy they may, on their death, leave all of the assets to a new partner or to their own children from a previous relationship (particularly if your children and spouse do not get along or if their relationship deteriorates after your death).
Choosing an Executor
Your executors are the people responsible for putting the will into effect. They will collect in all of your assets and pay any debts or liabilities. They are responsible for safeguarding your estate and so should be selected carefully. If the estate is complex or if there is friction in the family or between the beneficiaries you may wish to consider appointing a professional executor such as the partners in LDJ solicitors.
Appointment of Guardians
If you have children it is very important to use your will to appoint a Guardian to take care of them if you were to die. The appointment will only usually take effect when both parents have died but may also take effect if one parent survives but does not have parental responsibility for the child or children
Gifts to Charity and Tax Savings
If your estate would be subject to Inheritance tax a clause could be included in your will to allow your estate to benefit from a reduced rate of Inheritance Tax, subject to certain rules, if 10% of the estate is left to charity.
Can I write my own will?
Homemade wills carry significant risk and will not be valid unless all legal requirements have been fulfilled. There is a risk that the will is not signed or witnessed correctly or that the words used are ambiguous or misleading. It is, therefore, important to have your will drafted by an experienced solicitor who will ensure that the will carries out your wishes.
If you require any further information or you would like to make an appointment to make a Will please don't hesitate to contact the Wills & Probate Team at LDJ Solicitors on (024)76 745000.