Why you should make a will

Why should you make a Will? There are many reasons, some of which may apply to you, and some, not. Some of the reasons are:

1. If you don’t have a valid Will when you die, you are said to die "Intestate". Click the link to find out what happens.
2. If you have family, your Will can say to whom you want to leave what. This ensures that your wishes are carried out, and you can plan ahead to deal with any problems between family members, such as jealous siblings.
3. Your Will should appoint “Executors”, who are the people who deal with it and carry out your wishes, and deal with Inheritance Tax, money you owe or that others owe to you. This is known as winding up the estate. As opposed to the “Administrators”, who apply to the Court to deal with your estate if you die Intestate, Executors have authority to deal with your estate, at least on a temporary basis, from the date of your death, and do not have to wait for the Court to give them authority, as do Administrators.
4. If you are not married, or in a formal Civil Partnership, there are no legal presumptions that may assist your partner if you die Intestate, so they may not inherit all or part of your estate as you might wish. A “Common Law Marriage” is not recognised in law, nor is a long period of living together unmarried or even raising a family, so make a Will to ensure that your loved ones are protected.
5. If you are divorced, your Will can say what you want to give to your former spouse(s), if anything, or make it clear why you don’t.
6. Leading on from the above, if you have children, either from a previous marriage or relationship, or from your present marriage or relationship, your Will can ensure that they receive what you want them to, or explain why you are not providing for them.
7. If you have children under 18 your Will can appoint whoever you want to be their guardian(s).  There is no other way of doing this, and your small child might be brought up by somebody in the family you dislike and don’t trust because that person steps in and takes over.  Is that what you want?  You can also put their money into a trust fund and appoint trustees (who may not be the same people as the guardians) to administer it as you have instructed and you can say what you want to happen to their money, to assist with their education and ensure that they do not spend it while they are still too young to make sensible financial decisions.
8. If you have no family who are entitled to inherit under the Intestacy rules, your estate has to be paid to the government. You can avoid this with a Will by, for instance, leaving your estate to charity.
9. If you and your spouse or Civil Partner die together (eg, in the same plane crash) your estate may end up being distributed to his or her family, which may be something you don’t want and can avoid with a Will.
10. If appropriate, you can make your Will “tax effective” to ensure that your estate does not have to pay any more Inheritance Tax than it need. This is particularly important if you are not married or in a Civil Partnership.
11. If you want to leave something to anybody not covered by the rules governing Intestate estates, for instance a former spouse, a close friend or a charity, then you can only do so my making a Will.
12. You can give directions in your Will on how you want your funeral to be dealt with, whether and where you want to be buried or cremated, where you want your ashes scattered, and any other wishes. This will avoid your loved ones having to guess what you would have liked.
13. Once you have made a Will, you will know that you have done your best to ensure that, when you die, your estate will be dealt with by people you have appointed and trust, that your family will be looked after and that winding up your estate will cause the minimum distress to your family and loved ones. You will have peace of mind.

When you have made your Will, remember:

1. Send it to me for checking, if you have not signed it in my office (recommended). It is part of my duty as your solicitor to check that your Will has been signed and witnessed correctly if not done in my presence. If a Will is not correctly signed and witnessed, it may well not be valid and your estate may be governed by the Intestacy rules.
2. Keep it up to date. This means reviewing it on a regular basis to see if anything in your personal circumstances has changed, or if any change in the law affects what you have put in your Will. I help with this by entering your Will in a perpetual diary and writing to you every three years or so to remind you to look at your Will and check that it still says what you want. I do not charge for this.
3. Make sure your family and (particularly) your Executors will know where your Will is when you die. If your Will cannot be found, even if a copy is available, your Executors will find it difficult or even impossible, depending on the circumstances, to obtain an order from the Court (known as “a Grant of Probate”) authorising them to administer your estate. I will happily keep your Will for you in my safe, and do not charge for doing so.
4. If you want to change your Will, I will deal with any changes for you at minimal cost in straightforward cases; for instance, simply changing the name of one of your Executors, because your Will is stored on my computer disk and in my backup system and amendment is easy.

Common reasons for not making a will

I’ve been too busy to get down to it. Answer: It really doesn’t take long to think about your Will and write down some ideas of to whom you want to leave what, and who you want to deal with your estate.

I can’t decide any of this. Answer; this normally means that you cannot think up the perfect result for your estate, so you don’t do anything. Read what happens if your estate is dealt with under the Intestacy rules. Is this what you want? If not, start by working out who you do not want to leave anything to, and who you do not want to deal with your estate. Then make a first Will including the “least worst” options to ensure more that what you don’t want doesn’t happen, rather than trying to achieve perfection first time. You can always change your Will later.

I can’t get my wife/husband to agree what we should do. Answer; do you know what you want? If so, go ahead and make your own Will and show it to your spouse. If he/she disagrees with what you have done, you have started a debate between you out of which, if you are shrewd enough, you will decide on Wills you both agree with. On the other hand, if he/she agrees with what you have done, suggest that he/she instructs me to make the same Will for him/her.

We can’t agree on some important detail in the Will. Answer: this is frequently about such things as ultimate residuary beneficiaries, guardians for your children, agreement on who gets what, or appointment of executors. As before, think of the least worst solutions to avoid things happening that you definitely don’t want to happen. Once you have got a “least worst” Will, you can alter and fine tune it later.

Our circumstances are changing. Answer: Does what is changing really mean you can’t make a Will? No; you can allow for any anticipated changes. For instance, if you(r wife is) are expecting a baby, then the Will should anyway contemplate any number of children, so this doesn’t matter. If you are moving house, your address at the time you sign you Will doesn’t matter, and the identity of the house (if it forms part of your estate) is again covered by properly drafted wording. Any other contemplated changes can also be covered, so don’t wait for whatever changes you anticipate; make your Will now!

I don’t believe in Wills. Let nature take its course. Answer: not nature, but the law and the government. See Intestacy for what happens. Whatever your circumstances, is that what you want? Even if it does, it leaves a lot of unanswered questions, such as appointment of guardians, funeral arrangement, gifts to anybody not in the rules of succession on intestacy etc.

The process of making a Will is not always straightforward.  If you want to read some examples of where things have gone wrong, click on Cautionary Tales ›

John Hawes & Co Solicitors. 36A Dyer Street, Cirencester GL7 2PF|Tel: 01285 658633|Fax: 01285 650193|Email: jhawes@elawuk.com