Where there is a Will

At its most simple, a will is a set of instructions indicating how you want your estate to be dealt with after your death.

However, it is important to remember that a will is an important legal document that has stringent technical rules that must be complied with to make it valid. For example, a will must be signed in a particular way – get this wrong and you risk invalidating the whole document.

Why make a will?

The main reason to make a will is so that you can be certain of what will happen to your assets following your death. It is especially important if you have children or other family who depend on you financially, if you want to leave something to people outside your immediate family or if you do not have any immediate family.

A will makes it much easier for your family or friends to sort out your estate when you die. Without a will the process can be more timeconsuming and almost certainly more stressful.

A will would usually appoint executors and these people will have the power to deal with your assets immediately following your death. If you do not leave a will appointing executors, nobody has the power to deal with your assets until after a court application has been made.

What happens if there is no will?

If a person does not have a will, the law will decide what happens to their estate. The Intestacy Rules are the legal rules that apply when a person does not have a valid will. These rules might not be the most tax efficient way of dealing with your estate, they may not suit your family situation and, perhaps most importantly, they may not distribute your estate in the way you might expect. Often people assume their whole estate will pass to their spouse, but that is not always the case. The distribution of a person’s estate will depend on the value of the estate, whether they are married and if they have children.

The Intestacy Rules will also determine who has the right to bring a court application to deal with your estate. It may be that the Intestacy Rules allow a person to deal with your estate that you would not have chosen yourself.

Two-thirds of cohabitees mistakenly think there is some form of “common-law marriage” that gives them rights similar to those enjoyed by husbands and wives. In fact, many people might be surprised to learn that the concept of a common law marriage has been defunct in England since 1753.

A common-law husband or wife is not entitled to anything at all under the Intestacy Rules and their only option is to mount expensive court proceedings with a far from certain outcome.

If a person does not leave a will and does not have any family to receive their estate, it may pass to the government.

As circumstances change, a will should be reviewed. An older will might not take into account any changes in the law which might add an avoidable layer of complexity dealing with your estate. It is a good idea to regularly review your will and correct anything that is incorrect or out of date. Many people do not know that marriage usually revokes a will and having a will rewritten may be advisable following a divorce. A will should also be revisited when a couple separates or moves in together or a child is born.

There is no substitute for proper legal advice when it comes to people with complicated affairs such as those with children from a previous relationship or an estate that might be subject to inheritance tax. Although it may seem more expensive initially, this could save a lot of heartache, time and money in the long run.

The original article is in the September addition of the Northern Insight Magazine

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