Making a will is something we all intend to do but we put off. Solicitor Frances McCarthy explains the importance of making a will before it’s too late.

Where there’s a will…

Research shows that we are not alone in this. Nearly half the adult population in England and Wales has not made a will (https://tinyurl.com/mgmpy36). Making a will ensures that when you die, your estate is shared according to your wishes. Everyone should have a will, but it is even more important if you have children, you own property, if you have savings, investments, insurance policies, or if you own a business.

Consequences 

If you die without making a will, your estate will be dealt with according to the rules of intestacy. This can mean that the very people you want to protect and provide for are left struggling. In many cases, the Crown receives all the assets, an outcome that is rarely wished for.

Your spouse/civil partner 

If you don’t have children, a surviving spouse/civil partner will inherit everything. A partner who is not married receives nothing. If you have children however, then the surviving spouse will only inherit everything if the estate is worth less than £250,000. If it is worth more than £250,000, he/ she will inherit the first £250,000, personal property and half of the remainder. Your children will share the balance equally.

Example: John and Jill are married with a son, Billy. Their house is worth £350,000 but is in John’s name. He has other assets worth £50,000. John dies without a will.

On his death, Jill is entitled to £250,000 and half of the remainder of the estate. The total estate is worth £400,000 so Jill receives £325,000 and Billy receives £75,000. However, the house is £350,000 so Jill may be forced to sell it. This is probably not what John intended.

Your children

 If you don’t have a surviving spouse/civil partner then your children inherit everything equally. If you do, then their share depends on the size of the estate (see above). This can result in the children of a first marriage receiving nothing, which may not be what the deceased intended.

Example: John and Jill are married with two children, Tom and Mike. They divorce, John lives with Ann and they have a child, Amy. John dies without a will. 

• Jill gets nothing – she is divorced and not a surviving spouse 
• Ann gets nothing – she is not a surviving spouse
• The three children inherit equally

Others 

In the absence of a spouse/ civil partner or children, the estate will go to others for example, to parents, siblings, aunts and uncles and so on. If none of these applies, then the estate goes to the Crown.

Making a will 

Executors 

You will need to appoint executors – trusted family members or friends or a solicitor – and they will deal with the estate (collecting in the assets, identifying the debts, obtaining a grant of probate and then paying the debts and distributing the net assets in accordance with the terms of the will). 

Funeral instructions

The wishes for burial, cremation, or donation of the body to medical science can be set out in the will. 

Guardians 

One of the most important reasons for making a will is to appoint guardians for your children. Rather than leaving matters to chance, it is an opportunity to set out your wishes clearly to avoid any uncertainty about who cares for your children after your death. 

Specific legacies 

A testator can also make specific bequests. These can range from a precious piece of jewellery bequeathed to a loved one, or a sum of money to a charity. 

Residuary estate 

Finally, the residuary estate, which is often left to a surviving spouse/ civil partner and if he/she has pre-deceased the testator, to the children. In these circumstances, it is usual to appoint trustees (often the executors) to manage the fund until children become adults.

Inheritance tax 

Tax is payable on estates worth more than £325,000 (the current limit). Gifts made to charity are free of tax and can be a useful way of reducing your tax bill, while benefiting a good cause. If you leave at least 10% of your estate to charity, it will cut how much tax is due on the rest. The rate at which Inheritance Tax is calculated is 36% rather than 40%. 

Reviewing the will 

Finally, once you have written your will, you should review it regularly, making sure it reflects your wishes, especially if you get married or enter a civil partnership as this automatically cancels your will. A divorce will also affect any provision in your will for that person or you may also wish to benefit new members of the family. Making a will is a prudent and thoughtful thing to do – don’t delay, do it now.

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