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Why Bother Making a Will? Part 1

Posted by David Cammack on October 15, 2018

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Why Bother Making a Will?

Almost everyone should have a will, but 60% of us don’t have one yet and this figure is increasing *. Even by the time we die, around a third of us still have not made even our first will, let alone kept an old one up-to-date. This article is all about why you should bother about making a will.

Many people put off making a will for a number of reasons, the most popular excuses being: **

1. I will do it when I am older
2. my estate won’t be large enough to make writing a will worth it
3. I haven’t thought about it
4. I can’t afford to make a will
5. I don’t know how to make a will

Here at Legalo we make writing a will quick, simple and very affordable, and, seeing as you are reading about wills right now, that takes care of excuses numbered 2 to 5. Given that it is so easy, why wait until you are older and take the risk of dying “intestate” (without a will)?

Depending on your family situation, there are 3 situations where it is absolutely critical to make a will or update your current one, sometimes urgently so. Let’s have a look at them.

If you have no will, what happens?

The Intestacy Rules apply if you die without having made a valid will. If you make no will, you risk those rules applying and in certain situations this can cause serious problems for your nearest and dearest after you pass away.

What are the Intestacy Rules?

These are the rules that say who inherits your estate if you don’t make a will (find out more here: https://www.citizensadvice.org.uk/family/death-and-wills/who-can-inherit-if-there-is-no-will-the-rules-of-intestacy/). These are some archaic rules made into law many decades ago, and they no longer reflect the circumstances of modern family life. An example of how the rules work is if you have children and a spouse, your spouse inherits the first £250,000, all chattels and half of everything else; and your children receive the other half of everything else in equal shares.

However the Intestacy Rules only ever distribute your estate to relatives (if you have them) – never to an unmarried partner. This can cause great unfairness …

1. You are co-habiting

Instead of marrying, many of us co-habit for long periods. Unfortunately, this is where the rules on intestacy are totally out of sync with modern life. Your partner, who may be one of your “dependents” (someone you support financially), will be left nothing under the Intestacy Rules. The concept of a “common-law” wife or husband does not exist in English law (while in Scotland the rights of cohabiting couples can be recognised under Scots Law in some circumstances), and so the Intestacy Rules in England and Wales make no provision for such a partner. Having no will in this situation is going to lead to very serious trouble.

For example, if you are unmarried but have children, they will inherit all your estate, but would they make fair provision for your unmarried partner if they are children from a previous relationship? Another example is if you don’t have children, but at least one of your parents is still alive – they would then inherit all your estate. Again, would they make fair provision for your partner or any step-children?

As possible dependents, your partner and step-children could dispute your estate, but this will likely lead to stress, uncertainty and high legal costs for your dependents and whoever has inherited from you under the Intestacy Rules. You can avoid all of this, if you just make a simple will.

2. You remarry but have children from a previous relationship

If you remarry, under the Intestacy Rules your spouse often inherits the lion’s share of your estate (see the earlier examples of how the Intestacy Rules work). If you have a small estate of under £250,000, this could be all of it.

Also don’t forget that assets that pass outside of your will (e.g. life insurance proceeds where someone else is the beneficiary; your share of your house if held on a “joint tenancy”, as nearly all are; jointly-owned bank accounts) are not counted as part of your estate on death and so don’t count towards this limit. If your house is owned on a joint tenancy basis, on your death it passes to the other owner automatically – it is then the rest of your estate that passes under the Intestacy Rules. This might leave very little to be shared among your children from past or present relationships.

If your children from your previous relationship are now adults and no longer financially dependent on you, then they might not have the right to dispute the estate. Effectively your failure to make a will would leave them with nothing. Your spouse might cut your children from a previous relationship out of his or her will when he or she passes away, and leave all his or her estate to his or her own children (including everything inherited from you). So you need both (a) to make a will and (b) to “sever” (terminate) the joint tenancy on your property. Once you have ended a joint tenancy on a property, you can leave your interest in your property through your will (or intestacy).

What about step-children?

Step-children do not inherit any part of your estate under the Intestacy Rules. Only blood relatives and legally adopted children count. So make sure you make a will and make provision for them. Again, if they are adults when you die, they may no longer qualify as dependents. Therefore they could be unable to dispute your estate in court.

3. You are separated, but not yet divorced

Any will you have made in the past is made void when (a) you marry or (b) you divorce. If you end up with a long gap between separating and your divorce being finalised, this would increase the risk. You might pass away before you ever finalise the divorce. In this case, without a new will, either:

(a) your last will would apply; or

(b) if you have no will, the Intestacy Rules will apply.

Your old will might leave most of your estate to your estranged spouse. Clearly you may no longer wish do to this. This is particularly so, if you have already put in place a financial settlement on the divorce. You don’t want to pay twice! You might also have failed to end the joint tenancy on your property. If so, your estranged spouse, who might still jointly own the property, would then inherit that automatically.

As you can see, the Intestacy Rules would certainly leave a large amount of your estate to your estranged spouse. More and more divorces are taking place between retired or elderly couples. So there is a greater risk for them if they leave a long period between separation and finalising the divorce. You will also need to sever the joint tenancy on any property you own together. Otherwise this will automatically pass to the survivor when one of you dies.

If you have separated from your spouse, started a new relationship and then you pass away without having sorted this out, you make it even harder for your new partner.

Terminating a Joint Tenancy

If you need to terminate a joint tenancy on a property (so that you can say who inherits your share of it under your will), then use our simple notice of severance of joint tenancy and send a copy of it to the other owner. You’ll find it quick and very easy to use.

Take action now – do bother making a will

Whether you fall into one of the critical situations above or not, surely you’d rather have the peace of mind that comes with knowing you’ve made a will and sorted out proper provision for those you love in it. Hopefully you now know why you should bother about making a will.

With Legalo’s range of will templates, it is so easy and cheap to make a will (or redo your old will to bring it up-to-date), you really have no excuse. With our will templates you don’t need to involve a costly solicitor. You don’t need to wait until they are ready to see you and to draft your will. Do the job immediately, with no fuss, with a Legalo will template. You can use any of our will templates to create a valid, legal will in just a few minutes.

This was part one of a two-part series – for Part Two click here.

* According to a survey by Unbiased.co.uk in 2017: https://business.unbiased.co.uk/press-releases/31-million-uk-adults-at-risk-of-dying-without-a-will-2-10-2017.
** Also from the 2017 survey by Unbiased.co.uk.

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