Most people know they should have a will. Most people do not have one. The gap between intention and action on this particular task is one of the most persistent and consequential forms of procrastination in adult life, and the consequences of leaving it too late fall not on the person who delayed but on the people they leave behind.
This article sets out what a will actually does, what happens if you die without one, and why the process of making a will is far less daunting than most people imagine. It also covers the related areas of powers of attorney, trusts and estate planning, which together form the foundation of a properly organised set of affairs for yourself and the people who matter to you.
What a Will Actually Does
A will is a legal document that sets out your wishes for what happens to your estate, meaning everything you own, after your death. It names the people or organisations you want to benefit from your estate, appoints the people responsible for carrying out your wishes (your executors), and can make a range of other provisions that go well beyond the simple question of who gets what.
A well-drafted will prepared by qualified solicitors in north wales is far more than a list of who inherits your belongings. It can appoint guardians for your children if they are under eighteen, ensuring that the people you would want to care for your children are named and have legal standing to do so rather than leaving that decision to the courts. It can create trusts that protect assets for vulnerable or young beneficiaries, ensuring that money is managed carefully rather than handed over in a lump sum. It can make specific provisions for business assets, agricultural property or complex financial arrangements. And it can be structured to mitigate inheritance tax, potentially saving your beneficiaries a significant sum.
What Happens If You Die Without a Will
Dying without a valid will is known as dying intestate. When this happens, your estate does not simply pass to whoever you would have wanted it to go to. Instead, it is distributed according to a rigid set of rules known as the intestacy rules, which are set by law and which pay no attention whatsoever to your actual wishes, your relationships or your circumstances.
The intestacy rules in England and Wales follow a strict order of priority. A surviving spouse or civil partner is at the top of that order, but the rules about how much they inherit, and what happens to the rest, can produce outcomes that many people would find surprising and in some cases deeply unsatisfactory.
For example, if you are married and have children, your spouse does not automatically inherit everything. Under the current intestacy rules, your spouse inherits your personal possessions and a fixed statutory legacy, and beyond that the estate is split between your spouse and your children. Depending on the size of your estate, this can create practical difficulties, including the possibility of the family home needing to be sold to pay out the children’s share.
If you are not married but are in a long-term relationship, the intestacy rules do not recognise cohabiting partners at all. However long you have been together and however clearly you would have intended your partner to benefit from your estate, they inherit nothing under the intestacy rules. Everything passes to blood relatives in the order set out by law. This remains one of the most significant and least widely understood legal vulnerabilities facing the large number of couples in the UK who live together without being married.
If you have no surviving relatives within the categories covered by the intestacy rules, your entire estate passes to the Crown. This outcome, known as bona vacantia, is genuinely avoidable with even the most basic will in place, and yet it happens every year to estates whose owners simply never got around to making their wishes known.
Common Reasons People Put Off Making a Will
Understanding why people delay making a will is useful because most of the reasons turn out not to be particularly compelling when examined honestly.
Superstition. Some people genuinely feel that making a will is tempting fate, as if acknowledging the fact of eventual death makes it more likely to occur. This is understandable at an emotional level but does not survive rational scrutiny. Death is a certainty regardless of what legal documents you have or have not signed.
Procrastination. The more honest reason for most delays is simply that making a will feels like one of those tasks that can always be done later. It is not urgent in the way that most daily demands feel urgent, so it perpetually sits at the bottom of the list. The difficulty is that later sometimes does not come, or comes at a time when a person lacks the capacity to make a valid will.
Assumed simplicity. Many people assume that their affairs are straightforward enough that the right outcome will happen automatically. As the section above on intestacy rules illustrates, this assumption is frequently wrong, and the more complex your family or financial situation, the more important it becomes to have a will rather than less.
Cost concerns. The cost of making a will with a qualified local solicitor is often far lower than people expect. Many firms offer fixed fees for standard wills and are transparent about costs from the outset. When weighed against the potential costs of intestacy, both financial and emotional, the cost of a properly drafted will is trivial.
What a Will Cannot Do
It is worth being clear about the limits of a will as well as its powers.
A will covers your estate, which broadly means your personal assets: property, savings, investments, personal possessions and similar items. It does not automatically cover assets that are held jointly, which pass to the surviving joint owner by operation of law, or assets that are nominated to a specific beneficiary through a pension or life insurance policy. These need to be considered separately and coordinated with your will to ensure your overall wishes are implemented as intended.
A will also cannot override a successful claim under the Inheritance (Provision for Family and Dependants) Act 1975, which allows certain categories of people to apply to the court for provision from your estate even if they have not been included in your will or have been left less than the court considers reasonable. This is another reason why taking professional legal advice when making a will is important: a solicitor can advise on the risk of such claims and structure the will to minimise the likelihood of a successful challenge.
Lasting Powers of Attorney: The Document Everyone Needs and Few Have
Making a will deals with what happens after your death. A Lasting Power of Attorney, or LPA, deals with what happens if you lose the capacity to manage your own affairs during your lifetime.
An LPA is a legal document that authorises one or more people of your choice, known as attorneys, to make decisions on your behalf. There are two types: a Property and Financial Affairs LPA, which gives your attorneys authority to manage your finances, property and financial decisions, and a Health and Welfare LPA, which gives authority to make decisions about your medical care, place of residence and personal welfare.
The critical point about LPAs is that they must be made while you have mental capacity. If you lose capacity without having made an LPA, the people who would otherwise be best placed to help you, your family or partner, have no legal authority to manage your affairs or make decisions about your care without going through the Court of Protection, a process that is time-consuming, expensive and stressful. Many families discover this too late, when a parent or partner has already lost capacity and the only route forward is through the court.
Making both types of LPA alongside your will is now considered the minimum sensible level of legal preparation for any adult, regardless of age. LPAs are not just for the elderly. A serious accident or sudden illness can affect anyone at any age, and having LPAs in place means that the people you trust can step in and help without legal obstacles.
Trusts: A Powerful Tool for Protecting Your Estate
Trusts are sometimes perceived as something only the very wealthy need to think about, but this is far from accurate. Trusts are used for a wide range of purposes in estate planning and can be genuinely beneficial for families with modest as well as substantial estates.
A trust is a legal arrangement in which assets are held by trustees for the benefit of beneficiaries. Trusts can be created during your lifetime or through your will, and they serve a variety of purposes.
Protecting assets for vulnerable beneficiaries. If you have a child or other beneficiary who is disabled, has addiction issues or is simply young and not yet equipped to handle a large inheritance, a trust allows you to pass assets to them in a managed way rather than as an outright gift.
Asset protection. Trusts can be used to protect your home and other assets from the potential costs of long-term care, though this is an area where careful legal advice is essential as the rules are complex and the legal boundaries need to be clearly understood.
Tax planning. Certain types of trust can be used as part of an inheritance tax mitigation strategy, reducing the taxable value of your estate and preserving more of your wealth for the people you want to benefit.
Business and agricultural succession. For families with business or farming interests, trusts are often an essential component of succession planning, allowing the business or farm to be passed on in a way that maintains its integrity and viability while meeting the competing needs of different family members.
Inheritance Tax: Understanding the Basics
Inheritance tax is levied on estates that exceed the current nil-rate band threshold, currently £325,000 per individual, at a rate of forty per cent on the excess. There are various reliefs and exemptions available that can significantly reduce or eliminate an inheritance tax liability, but accessing them requires proper planning.
The residence nil-rate band provides an additional allowance where the family home is passed to direct descendants such as children or grandchildren, effectively increasing the tax-free threshold available to many families. Business property relief and agricultural property relief can significantly reduce or eliminate inheritance tax on qualifying business and agricultural assets. And gifts made during your lifetime, subject to specific rules about timing and amounts, can also reduce the taxable value of your estate.
Effective inheritance tax planning requires a thorough understanding of your current financial position, your likely estate at death, the reliefs available and the most appropriate legal structures to implement. It is not a one-off exercise but an ongoing process that needs to be reviewed as your circumstances change.
Making Your Will: The Practical Steps
Making a will with a solicitor is a straightforward process. You will have an initial meeting or consultation to discuss your circumstances, your wishes and any particular concerns you have. The solicitor will advise you on the options available and the most appropriate approach for your situation. They will then draft the will for your review and, once you are satisfied with it, arrange for you to sign it in the presence of the required witnesses.
The entire process, for a standard will, can typically be completed in a small number of weeks and need not involve more than one or two appointments. Many solicitors offer home or workplace visits for clients who find it difficult to travel, and telephone or video consultations have become increasingly standard for initial discussions.
When your will is signed, your solicitor can store the original document securely on your behalf, free of charge in many cases, and arrange for it to be registered if you wish. This ensures that the will can be located when it is needed and reduces the risk of it being lost or damaged.
Reviewing and Updating Your Will
A will made at one point in your life may not reflect your circumstances or wishes a decade later. Marriage automatically revokes an existing will in England and Wales, meaning that if you made a will before your marriage and did not make a new one afterwards, your existing will has no effect. Divorce revokes gifts to a former spouse and their appointment as executor, but does not revoke the rest of the will. The birth of children, a significant change in your financial position, the death of a beneficiary or executor, or a change in your wishes about how your estate should be distributed are all good reasons to review and potentially update your will.
As a general guide, reviewing your will every three to five years or following any significant life event is a sensible habit. The legal arrangements you put in place today should reflect who you are and what you have now, not who you were when you last found time to think about it.
For anyone in North Wales, Denbighshire, Flintshire, Conwy or the Chester area who has been meaning to sort out a will or lasting power of attorney, the message is simple: the best time to do it is now, before circumstances make it more complicated or, in the worst case, before it is too late to do it at all.
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