Tim Spencer Lane, legal expert, tells his experience of why leaving a Will until it is too late is untidy and inefficient and could end in costly family disputes.
If you want to relieve your family and friends of unnecessary anxiety after your death there is only one way to do so: make a Will.
Unfortunately for busy health and care professionals it is often one of those tasks that is put to the bottom of the To Do list. Time and again it is a task, and a relatively simple one too, that people put off. Perhaps there is a psychological disincentive: facing up to your own mortality.
But the great advantage of making a Will is that YOU are still in charge, even though you are not around.
The Law Commission estimates that 40% of the adult population die without a Will. This is unhelpful, unnecessary and frankly ridiculous.
What is a Will?
A Will is simply an expression of a person's wishes intended to take effect only at death. First and foremost, it is a legal document in which you can set out who should receive your savings and possessions (your estate). For instance you may want to leave certain items to your close friends or family members, or to a cause (such as a charity). This could include small sentimental items such as photographs, or large expensive things such as property.
But a Will can also be used for much more than just the destination of a person’s possessions. Often people use Wills to express preferences about what happens to their bodies after death (for example whether they wish to be buried or cremated). They can also set out what music they would like played at their funeral and the structure and content of the service.
Wills usually state who the Will-maker (the Testator or Testatrix in legalise) want to see that the terms of the Will are carried out. A Will can be used to appoint an “executor” to administer a person’s estate and the law also allows people to use their Wills to appoint guardians for their minor children.
In order to be valid, a Will must comply with a number of formal requirements. Essentially, a Will must be in writing, signed by the testator in the presence of two witnesses and signed by those witnesses.
So what stops us from making a Will?
Many matters stop us from making wills. We may lead busy lifestyles. It can be difficult to face up to issues around our own death, and to discuss them with family members. The legal framework itself does not help. The law in England and Wales that governs Wills is, in large part, a product of the 19th century. The main statute is the Wills Act 1837, and the law that specifies when a person has the mental capacity to make a Will (“testamentary capacity”) is set out in the case of Banks v Goodfellow from 1870.
The Law Commission has recently launched a public consultation exercise on reforming this whole area of law. It argues that the law of Wills needs to be modernised to take account of changes in society, technology and medical understanding that have taken place since the Victorian era. The consultation documents can be accessed here: http://www.lawcom.gov.uk/project/wills/
5 key reasons to make a Will
1. Giving effect to your wishes
Making a Will is the only way to make sure that your wishes are carried out after you die. In other words, a Will is a means of ensuring that your savings and possessions go to loved ones, and causes that are close to your heart. It allows people to plan ahead and make future decisions.
2. Avoiding family disputes
Any lawyer who specialises in Wills and Probate knows that even the most stable families can experience disharmony and acrimony following a death. In many cases the arguments will focus on the Will (or the absence of a Will) and entitlements to the person’s estate. In some cases a solicitor is required to get involved in order to resolve the disputes. And that, of course, means that legal fees may bite into the value of the estate.
Making a Will is by far the best way to avoid such disputes and ensure that there is no doubt about who you want to leave your savings and possessions to.
3. Providing for your family
For many people their Will is an important means of ensuring that certain assets remain in the family, and are passed on down the generations. If you have children you can use your Will to appoint Guardians to look after them if you die while they are still underage. You can make sure that there is no need for the Courts to get involved in what would already be an extremely distressing time for your children and ensure the Guardians you appoint share the same values as you do.
4. Reducing tax liabilities
There are many good tax reasons for making a Will. For example, a Will is often a sound and completely legal way to minimise any Inheritance Tax bill on your estate after your death.
5. Avoiding the intestacy rules
If despite this firm recommendation, you do not make a Will you will die “intestate.”
This means you will not be able to choose who inherits your estate. The rules of intestacy date back to the 1920s and are by common consent outdated and inflexible. Certain people who you consider close to you may not be able to benefit from your estate unless clearly named in your Will.
Most notably, no provision is made for a person’s cohabitant under the rules. Without a Will your loved ones may have to take expensive legal action in order to receive any benefits from your estate.
Except in complex cases, making a straightforward Will can often be simpler than you might imagine and not normally a very costly matter. Remember, too, your executor or executors need to be reliable and trustworthy people.
Leaving a Will until it is too late is untidy and inefficient and could end in costly family disputes.
When it is done it is done, though you retain the right to amend it if you so choose, or if circumstances change.
Today, there are various ways that you can make and update a Will and in recent years, smart technology has transformed the industry.
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