In England and Wales, unlike in many other European countries, we all have the right to leave our estate to whom we like after we die. However, the only way of exercising that right is to make a Will. Surprisingly, the majority of us do not exercise this right and instead allow our estate to be distributed after our death in accordance with an intestacy regime which was devised in 1925. Although updated in some respects since 1925, many people feel that the intestacy regime does not reflect the society we live in or how they would wish their estate to be distributed.
So why do so many people rely on these default provisions? In most cases, this would appear to be because no one wants to engage with death during their lifetime even though this is the only inevitable event in their life. But if it’s going to rain, having an umbrella helps you to stay dry. Making a Will helps your family navigate the practical and financial aspects of what is likely to be the most hugely traumatic event in their lifetime.
Making a Will does not take a great deal of time and saves an enormous amount of stress and uncertainty for your loved ones after your death.
If you are married and all of your children are common to you and your spouse, or if you have children but no spouse. then the intestacy rules may distribute your estate to all the people you would have chosen to benefit, if not in the same proportions. However, there would be no executor appointed and so a loved one would need to apply for a Grant of Representation and until its issue would have no authority to start taking steps to sort out your estate.
In most other circumstances and particularly if you cohabit with your partner or you have stepchildren, the intestacy rules are very unlikely to benefit your loved ones. Neither cohabitees or stepchildren feature in the statutory order for the distribution of your estate.
Making a Will gives you the opportunity to appoint an executor and to give your executor clear instructions as to whom you want your estate distributing. The rules of intestacy are a blunt, outdated tool. Your Will is bespoke, enabling you not only to decide exactly to whom and in what proportions your estate will be distributed but, for example, at what age you want your children to benefit and to whom you would like to give your personal possessions.
A Will is also potentially a vehicle for tax planning, enabling you, for example, to make efficient use of Inheritance tax exemptions and reliefs.
Whether you simply want to appoint your spouse as executor and make sure that your estate goes to your spouse and then to your children or whether you wish to appoint your cohabitee and set up trusts for your children and stepchildren and minimise your Inheritance tax liability, making a Will is always a worthwhile investment.
- Louise Kerr - Head of Private Client
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