Wills, power of attorney and other end of life matters
The last will and testament
Words by Kathryn Vasey
It is obvious why one needs a WILL isn't it. So why is it that and estimated 60% of the UK Population do not have one?
One of the most common questions we get asked as Solicitors is ‘Why do I need a Will?’ and to be honest the reasons are many! Wills are used in Estate Planning, providing for your family, friends, charities right through to appointing guardians to look after children under the age of 18 etc.
The only way of ensuring that the people you want to benefit from your estate actually do receive what you want them to, is to make a Will. Many people assume that (if they are married) their spouse will receive everything, which isn’t actually the case. Under the Intestacy rules, the government sets out a hierarchy of who receives what and, in many cases, this isn’t what people want. In addition, if no family is able to be traced then ultimately your assets could end up with the Treasury Solicitor.
You may be on your second (or more!) marriage and have children from previous relationships who you want to protect, or you may have cherished items that you want to pass on to particular people which will not necessarily happen under the intestacy rules.
Your property sold
Another common misconception (and a good reason to make a Will) is that of a ‘common law wife’ – there is no such thing. If you live with someone and the property is only in one person’s name, then there is no guarantee that the surviving partner will be able to stay in the property. If, for example, you were living with your partner and didn’t have a Will – on your death, then it is your blood relations (in hierarchical order as determined by the government) who would inherit your assets. This could result in your property being sold and the surviving partner having to move out of their shared home whilst coming to terms with losing their partner.
Wills themselves don’t have to be complicated documents and are quite often written in ‘plain English’ rather than ‘legal speak’ which we understand puts many people off making Wills –the main points in Wills are below:
Executors – these are the people who carry out your wishes and administer your estate. This involves cashing in all your assets, selling your home etc paying off any debts and ensuring the correct people inherit your assets.
Funeral wishes – you can express your wishes to be buried or cremated and mention any specific requests you may have for the funeral!
Guardians (if required) – any parent needs to consider who would look after and bring up your children should both parents or those with parental responsibility die before your children reach the age of 18. This is a big responsibility for friends or family to take on and in many cases, a financial payment can be made to help those who will act as guardian, for example, they may need to move house to accommodate the extra children.
Specific legacies – many people have special items they want to pass on to specific people, whether it be jewellery or other family items such as medals that parents wish their children to inherit. Specific gifts can also include money e.g. I leave each of my children/grandchildren/nieces/nephews X thousand pounds.
Trusts for children – If children are under the age of 18, they are unable to give good receipt to the Executors for their inheritance and the money etc will be held on trust for them until they reach a certain age, whether this be 18, 21 or 25 – that is something you can determine. Maybe you think they won’t be responsible enough at 18 to manage a large amount of money so you can make that determination. The Executors will be able to advance money from the trust so that if the child wishes to go on a school ski trip etc then the money can be released as long as it is for their maintenance and benefit. The Executors can basically do anything with the money that you would be able to e.g. buy a property, make loans and invest it where they choose.
Property Protection – for example, if you own a property with your second spouse and have children from previous relationships, you can leave your half of the property to your children whilst permitting your spouse to live in the property for so long as they wish – this then protects your childrens’ inheritance whilst also providing your current spouse with a roof over their heads for as long as they wish. This method of protection is also useful in limiting the availability of funds for potential care fees which may be required.
Residuary distributions – this is what is left in the pot after all specific gifts and liabilities have been settled. Generally this would be gifts to family members but it can be to whoever you wish.
Something we hear quite frequently is that Wills are expensive to create but bearing in mind the value of your estate, the cost of a Will is usually minimal in comparison and the cost of trying to remedy ‘home-made’ Wills vastly outstrips the cost of having a professionally prepared Will.
Kathryn Vasey of Scotts Wright Solicitors.
There are many also inherent dangers in creating home-made Wills with potentially the wishes of the deceased not being followed due to poor wording of the Will or not fully understanding the way in which their assets are held. Quite a common problem we encounter is that of a parent who had made a homemade will splitting their property between those of his/her children from the first marriage and their second spouse – a common scenario these days. However, what some don’t appreciate is that quite often spouses own property as Joint Tenants, which means that their share in the property passes automatically to the second spouse and the children lose out. It is unfortunately quite common that the second spouse then sells the property and moves on, so that the children of the deceased receive nothing. There are ways and means which we as solicitors can protect your share of property or other assets whilst ensuring that the people you want to inherit do so.
As a final point, many people put off making a Will as they regard themselves as fit and healthy and think that it is something that can be done many years down the line. However, we never know what is round the corner and life does tend to throw curve balls every so often, for example, if you fall off a ladder and hit your head, it may affect your mental ability to make Wills and determine what will happen to your assets. We also recommend that you review your Will every five years and certainly after any major life event, such as getting married, divorced or having children.
Scotts Wright Solicitors have offices in North Yorkshire but clients in several countries around the world. If you would like further information you can contact Kathryn at:
01969 622227 or 01748 832431