Dying Matters Week – Let’s talk about death and Wills

It is fair to say that we as a society are not comfortable discussing death. It is daunting – you have to think about Wills, funerals, organ donations, Lasting Powers of Attorney, and care planning. You cannot escape death, but you can ensure your plans are in place. Unnerving as it is, the alternative to not talking, thinking and planning is problems and heartache for loved ones and arguments over property, assets and funerals. Wills and Lasting Powers of Attorney need to discussed more openly and acted upon.

Your first conversation about death might be your Will. Here we consider why a Will is important and the types of things you might have to discuss or think about in advance of preparing your Will.

If you die without a valid Will, your assets will pass in accordance with the intestacy rules. This can have unintended and undesirable consequences. Contrary to popular belief, your whole estate does not pass automatically to your husband, wife or civil partner. Furthermore, unmarried, cohabiting partners can be surprised to find that there is no such thing as a ‘common law spouse’. If you are not married then under the intestacy rules your partner would receive nothing and family members would inherit, which may not necessarily be the intention.

Provided you have mental capacity, you can prepare and amend your Will at any time, especially if your life circumstances change. A suitably drafted Will has other advantages. It makes the process of administering your estate much easier. You can also exercise control over who is responsible for doing this. A Will can also be an effective inheritance tax planning tool, as well as providing a degree of protection in the event that you die with young children or have any concerns about spendthrift beneficiaries, bankruptcy or divorce.

The main reasons you should ensure you have a legally valid will are:

  1. Appoint executors to administer and distribute your estate – If you died without a will, the intestacy rules would determine who would be responsible. Whilst this would still be family, it may not be the family member you would have chosen to look after your assets, particularly where the estate is large and young children are involved.
  2. Guardians – You can appoint guardians for your children in your Will giving you peace of mind of knowing who would be bringing up your children if you were not there.
  3. Personal possessions – You can leave your possessions to specific individuals.
  4. Pets – You can ensure that your loved pets are suitably rehomed by detailing who would look after them and providing any financial assistance they may need to do so.
  5. Charitable gifting – You can leave gifts to any chosen charities.
  6. Avoiding the intestacy provisions – If you are not married your partner may not receive anything from your estate – even if you own a property together or have children together! Furthermore, if you are married with children and die without a Will, your spouse will not receive all of the estate. A Will allows you to leave your spouse or partner as much as you would like from the estate and also provide protection in respect of the assets through the use of trusts.
  7. Gifts to children – If you die without a Will, any child would automatically receive their inheritance at 18. Whilst legally an adult, many would not leave large sums of money to children at 18. A Will allows you to opt for a more appropriate age for your children to inherit (21 or 25) and allow you to leave assets in a protected structure for your children (discretionary trusts).
  8. Inheritance tax planning – Inheritance tax is not only based on the value of your estate but also on whom you leave it to. Property left to your spouse is automatically exempt from inheritance tax. Property left to your children or grandchildren can generate a lower inheritance tax bill due to the additional threshold available under the residence nil rate band. Alongside general estate/succession planning, a Will could reduce the amount of inheritance tax or at the very least plan for how it would be paid.
  9. Avoiding family disputes – Unfortunately, sharing out an estate often causes disputes within families or other beneficiaries. Avoiding disputes is often an important reason for writing a Will.
  10. Consider succession plans for your business – In particular, it will be important to check the company’s articles or the partnership deed to ensure that these do not include any restrictions on the transfer of your business interest to your intended beneficiaries.

Procrastination and the unwillingness to accept death as part of life are common reasons for not having a will. Sometimes the realisation that Wills are necessary comes too late.

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