What is a Will?

A Will is a legal document in which a person states what they would like to happen after their death. It provides assurance that your clients money, assets and personal possessions are distributed to the correct people and makes your clients funeral wishes known.

A Will allows flexibility in deciding who will look after your clients children in the event of death and who would manage the Estate on the children’s behalf until they reach the age of financial independence.

Whatever your clients age, if they own assets such as a house, savings, a business, personal possessions, or if they have children that depend on them, your client should consider writing a Will.

In the absence of a Will it would be up to the Courts/Social Services to decide who looks after and raises your clients children. By making a Will with Guardians named for your clients children your client can decide who they would like to look after their children in the event of their death. Your client should also consider putting in place life insurance to provide for their children in the event of death.

If your client doesn’t make a Will then the Government have already made one for them. These are known as the rules of Intestacy – you are said to have died “intestate” if there is no valid Will at the time of your death. For example, if you are married and die with a spouse and children then your spouse does not automatically get everything – if your Estate is less than £250,000 everything goes to the surviving spouse. However, if the Estate is over £250,000 then the surviving spouse gets £250,000 and all personal possessions. Half of the remaining Estate is split equally between the children with the spouse retaining a “life interest”, for example an income from the remaining 50% with this 50% ultimately being split between the children on second death. As you can see – assets being allocated in this manner can and do cause problems after death.

There is no automatic transfer of assets between couples who are cohabiting. Other than jointly owned assets, which would pass to the surviving owner on first death in law, all other assets could pass back to the deceased’s family under intestacy rules. In practicality it is unrealistic to expect a deceased partner’s family to come asking for his/her DVD collection but a Will formally arranges a clients affairs after death and avoids problems later.

A Will should be written in view of the divorce going ahead as there is a possibility in law that, in the event of your clients death, assets could pass back to their ex-partner. Although they are separated, even if they separated years ago, in the eyes of the law your clients ex-partner may still be entitled to their Estate after your clients death.

Your client might care to write their Will so that in the event they and their spouse both dying together your clients assets do not end up passing to the spouse’s family. For example, if killed in a car crash, in the eyes of the law the eldest person is deemed to have died first. It is, therefore, possible that in their Wills they leave all their assets to their families – you could see assets momentarily pass to a spouse before passing straight to his/her family. Is this what you want to happen?

Your client may wish to leave jewellery to a niece or leave war medals to a grandson. A Will can formalise all these gifts and help prevent family arguments – remember this – family and money rarely mix!

In the current tax year we can each leave an Estate of up to £325,000 (set until next review) without immediate liability to inheritance tax. Anything owned, over and above this £325,000 Nil Rate Band is chargeable to Inheritance Tax at a rate of 40%. A Will could be written to leave up to £325,000 to be split equally between children or held in Trust for their benefit. Under a normal “British” Will it is usual for all assets to pass between husband and wife. It might be prudent to still include a Will Trust to hold £325,000 for the benefit of children – leaving all assets to a spouse could result in that money being ‘eaten up’ in care home fees. It is vitally important that your client take legal advice in this respect.

It may be that your clients own children are financially successful in their own right. Passing assets to them on your clients death may be of no benefit and could simply compound their own Inheritance Tax problems later by artificially expanding their Estates. If this is the situation, then your client may want to leave their Estate to benefit grandchildren, or even great-grandchildren.

If your client has a very large Estate they may choose to set up a Trust to benefit a local charity or Support Group in terms of providing them with a regular income. Seek legal advice if you are considering this course of action.

Other reasons you may wish to include a trust in your Will

  • To hold assets on behalf of a child until they reach the age of 18, or up to 25. Doing so allows for the property or money to be properly managed until the children are old enough legally to take possession of it. Some types of trust allow the beneficiary to receive an income from the property.
  • To reduce the Inheritance Tax liability. Putting assets into trusts can in some cases reduce or even eliminate the inheritance tax liability for that asset; it can also help to keep the value of the Estate within the nil-rate band.
  • To provide for your spouse while keeping the Estate intact to be passed to your children. To protect the family home from being sold in order to pay for residential care.

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