Making a Will
In England and Wales we are able to leave our estate on death to anyone we choose. This is known as testamentary freedom. In this guide we give you guidance on what your Will can include, what happens in the absence of a Will and how you can start the process of creating your Will.
What is a Will?
A Will is the means by which you can:
- Choose who you would like to deal with your estate following death and ensure that the most appropriate person acts for you in this role.
- Choose who should benefit from your estate, including whether you wish to leave any money to charity.
- Set up trusts under you Will if your personal circumstances mean that you wish to protect assets and set out how you would wish beneficiaries to receive their inheritance.
- Mitigate any inheritance tax liability, where possible.
- Ensure that your assets are divided between those whom you would wish to benefit, rather than between those who would qualify under the intestacy rules, which govern the distribution of estates where there is no Will.
Why should you make a Will?
By taking advice and putting in place a Will, you can make sure that you have dealt with your estate in the best possible way for you and your family. You can make the appropriate decisions to rest assured that the assets will pass to the correct beneficiaries and won't be governed by the intestacy rules which are very strict and don't make allowances anyone you may wish to benefit outside of the family line.
What can you give away by your Will?
Your Will will deal with assets which you own in your sole name, or jointly with another person as what is known as "tenants in common". This is a form of joint ownership where your share of the joint property will pass in accordance with the terms of your Will. This is most commonly seen where property is owned with another person, but you may not wish for the joint owner to inherit the property outright on your death. There are many reasons why this may be the case, and it is particularly important to make a Will in these circumstances, so that you protect not only your share of the property, but you also make sure that you have provided any necessary protection for your surviving co-owner.
There are some assets which will generally not pass under your Will:
- Pension benefits.
- Jointly owned assets which are owned as "joint tenants", which means that the surviving joint owner will inherit the asset automatically. This usually applies to joint bank accounts, and also to property if you have not elected to hold this as tenants in common.
- Assets held in trust.
- Some partnership and foreign assets.
The Intestacy Rules
If you do not have a valid Will in place on your death, the intestacy rules will govern what happens to your estate.
If you are survived by a spouse or civil partner, and no children, your spouse/civil partner will inherit your entire estate.
If you are survived by a spouse or civil partner and children, your spouse/civil partner will inherit £270,000 (or your entire estate if it is worth less than this amount), together with all of your personal belongings and one half of the remainder of your estate (known as your residuary estate). The remaining one half of your residuary estate will be divided between your children at the age of eighteen.
If there is no surviving spouse or civil partner, the order of inheritance is set out under the rules as follows:
- Your children and remoter issue in equal shares;
- Your parents, in equal shares if both survive you;
- Your brothers and sisters in equal shares and the issue of any deceased brother or sister;
- Any half-brothers and half-sisters in equal shares and the issue of any deceased half-brother or half-sister;
- Your grandparents, in equal shares if they both survive you;
- Any uncles and aunts on both maternal and paternal sides of the family in equal shares and the issue of any deceased uncle or aunt;
- Any half-brothers and half-sisters of your parents and the issue of any deceased half-uncle or half-aunt; and
- if there are none of the above then the Crown (via the Treasury), the Duchy of Lancaster or the Duchy of Cornwall.
The intestacy rules are strict and do not allow for cohabiting couples, charities or anyone else you may wish to benefit outside of the family line.
How we can help
We can support you with making your Will.