It is estimated that nearly 60% of the UK population does not currently have a Will in place.
Whilst the reasons for not having a Will can vary (such as a reluctance to face what is
perceived as an unpleasant task), many people often mistakenly assume that a Will is not
necessary if they have little of value to pass on. However, regardless of the size of your
Estate, a Will enables you to control how your assets are dealt with after your death. This
note therefore reviews the benefits of putting a Will in place.
For anyone with young children, a Will enables you to nominate the choice of Guardian who
will take on parental responsibility for your children if you die whilst any of them are under
the age of 18. This is particularly important if you are the sole parent or if it would be
undesirable for the surviving parent to take on the responsibility.
Whilst the appointment of Guardians will have to be formally approved by the Court after
your death, the nomination in your Will provides a formal record of your wishes which will
hold strong sway with the Court.
Under UK law, Executors/Personal Representatives are the people who are responsible for
administering your Estate, including gathering in assets, paying all debts and expenses and
distributing the remaining funds to your beneficiaries. Depending on the size and
complexity of your Estate, this task can often be quite time consuming and onerous. Not
everyone is well suited to the role, and it is therefore helpful to be able to choose who
should take on this duty and seek their agreement to acting in advance.
Without a Will, you cannot nominate the people who should be responsible for
administering your Estate. Where there is no Will, the only people who will be able to act as
your Personal Representatives will be your next kin (i.e. your spouse and/or your nearest
blood relatives). Even if they are willing and able, friends, Partners and people related to
you by marriage (such as step-children and in-laws) will have no right to apply to be your
Personal Representative or deal with your Estate if they have not been appointed under
your Will. The burden of the administration may consequently fall on the shoulders of
family members who are unwilling or unable to manage the necessary tasks.
It is therefore strongly advisable to execute a Will in order that you can ensure that your
Estate is managed by the best people for the job.
Regardless of how few assets you own, a Will ensures that you can dictate who should
inherit them. Without a Will, your Estate will have to be dealt with according to the
The Benefits of Executing a Will
Intestacy Rules, which are the statutory rules which dictate how Estates should be
divided up in the absence of a valid Will. This may result in your Estate being distributed in
a way that is contrary to your wishes.
The Intestacy Rules govern which of your family members should inherit any assets held in
your sole name and how much each family member should receive. For example, if
someone dies leaving a spouse and children, then contrary to popular belief, the surviving
spouse will not automatically inherit everything (unless the assets are held jointly). Instead,
the spouse will be entitled to the first £322,00 of assets held in the deceased person’s sole
name, plus any personal belongings. However, any assets over and above that will be
divided so that 50% passes to the spouse and the remaining 50% passes to the children.
The manner in which the assets in any specific Estate will be divided up will be different in
each case, depending on which relatives survive. Therefore, an estranged parent or sibling
could end up inheriting your assets if they are your nearest living relatives at your death. In
the event that you die without any relatives, then your Estate will pass to ‘the Crown’ (i.e.
the Government).
Without a Will, it is almost impossible for someone who is not a blood relative to inherit any
of your Estate. With the sole exception of a surviving spouse or surviving Civil Partner,
anyone who is not a blood relative (such as a partner, step-child, brother/sister-in law,
Godchild, etc), will not benefit under the Intestacy Rules and, as already explained above,
will not qualify to be your Personal Representative.
Therefore, a ‘common-law’ husband or wife, or someone who has married you in a religious
ceremony (but who is not legally married to you) will not be able to receive anything from
your Estate. For example, if at your death you were living with your ‘common-law spouse’
in a property solely owned by you, then they would not only be excluded from
administering your Estate but they would also lose their home (as it would pass to your
blood relatives under the Intestacy Rules). For couples who are not married, it is irrelevant
how long you have been together, how serious the relationship is or whether you have
children together – the only qualification for inheriting under the Intestacy Rules is whether
you were legally married or in a civil partnership at the date of death. In these
circumstances a cohabitee or common-law spouse would therefore have to undertake a
potentially costly Court application to try to claim a share of your Estate.
As a result, if you wish someone who is not a blood relative to inherit part of your Estate or
to be involved with its administration, then it is essential that you execute a Will.
In addition to using a Will to name who you would wish to benefit from your Estate, a Will
can also be used to specify how or when those funds should be used.
The Benefits of Executing a Will
Without a Will, any adult who benefits from your Estate under the Intestacy Rules will
become immediately entitled to their inheritance as soon as the Estate has been
administered. However, there may be instances where it would be unwise or undesirable
for a beneficiary to have full control over their Inheritance. For example, where the
beneficiary has an addiction problem or has a disability that would prevent them from being
able to successfully manage their finances. In those circumstances, a Will is essential as it
would allow you to control how or when the beneficiary can access the funds, such as by
putting that share of the Estate into a Trust.
Where there is the possibility of minor beneficiaries, a Will can be used to specify the age at
which they should be given control of their inheritance. Under the Intestacy Rules, minor
beneficiaries are entitled to receive their inheritance when they turn 18. However, if you
execute a Will, you can choose to delay the age of Inheritance (perhaps to 21, 25 or even
30), and/or specify whether they should become entitled to the income and capital at
different ages.
Whilst most of your instructions in your Will will be legally binding upon your Executors and
beneficiaries, you can also use your Will to record non-binding requests, such as how the
beneficiaries should spend the funds. In particular, your wishes regarding how your funeral
should be carried out can be recorded in writing in your Will.
Leaving your Estate to be distributed in accordance with the Intestacy Rules not only can
result in unwanted beneficiaries inheriting your Estate but can also result in unwanted
Inheritance Tax implications.
For example, if you die without a Will, leaving a spouse and children, then (as explained
above) under the Intestacy Rules your children will be entitled to half of all your assets over
and above the value of £322,000. Depending on the value of your Estate and the amount of
money that your children receive, this could result in an unexpected Inheritance Tax bill.
By drafting a Will, you can choose to leave assets to beneficiaries who will be exempt from
Inheritance Tax (such as a spouse/civil partner or a charity), and ensure that other
beneficiaries receive amounts that fall within your available Inheritance Tax exemptions.
Similarly, you can ensure that assets that qualify for a tax exemption (such as business
assets or agricultural property) are distributed in a way that is tax efficient, thus avoiding an
unwanted Inheritance Tax bill for your family.
The common assumption is that assets that are owned jointly, will automatically pass to the
surviving joint owner (without the need for a Will). Whilst this is true for most joint assets,
the exception can be for jointly owned property.
The Benefits of Executing a Will
Jointly owned property can be held in two different ways. Firstly, the property can be
held as ‘joint tenants’. With this type of ownership, the deceased owner’s half share will
automatically be inherited by the surviving owner (regardless of whether there is a Will or
not).
However, joint property can also be held as ‘tenants in common’. The surviving co-owner,
in this scenario, does not automatically inherit, and instead the deceased owner’s share is
dealt with according to the terms of their Will (or in accordance with the Intestacy Rules,
where there is no Will). This can lead to problems where, due to the application of the
Intestacy Rules, an estranged family member of the deceased inherits the deceased owner’s
half share alongside the deceased’s cohabitee.
Therefore where property is owned with a someone other than a blood relation or a spouse,
and you wish the co-owner to inherit your share, then it is essential that either the property
is held as ‘joint tenants’ or you execute a Will in order to transfer your share to the person
of your choice.
In summary, a Will enables you to ensure that your assets and affairs are managed in the
way that you would wish after your death, and avoids your lasting legacy being one of mess
and confusion for your loved ones.