Inheritance law deals with wills, probate and the administration of estates. It governs the passing on of property, debts, and obligations upon the death of an individual. It contains the rules which apply to making a will and putting into effect the wishes which are expressed in a deceased’s will.
A person who dies with a will is said to have died ‘testate’, and is called the ‘testator’. A person who dies without making a valid will is said to have died ‘intestate’. If a person dies leaving a valid will, the property comprised in the deceased’s estate is distributed under the terms of the will. If there is no will, the property is distributed in accordance with the statutory order laid down in the Intestacy Rules.
A deceased’s ‘estate’ will include all solely owned property, plus any and all other property interests that do not pass to somebody else by operation of the law. Such would include property held as a joint tenant and property in which the deceased held only a life interest.
Should you make a will?
If you have minor children, definitely. If not, probably. It depends upon whether your personal wishes are in line with the intestacy rules. For most people they are not.
These rules have not kept pace with modern lifestyles, and are unlikely to reflect exactly what most people wish to happen to their property.
Furthermore, a will can give directions for the care of young children, it may save inheritance tax, and will appoint those who you wish to administer your affairs on your death.
In many cases, it is most important to make a will. If a married couple with children do not make a will, a surviving spouse will only receive the first £250,000 and the balance of the estate will go to the children of a previous relationship or other relatives. This can cause real difficulties, and will often leave a second wife or husband without proper provision.
A couple may have lived together for many years as husband and wife, but without marrying. In these circumstances, the intestacy rules make no provision for the surviving partner. This will leave the surviving partner with either nothing or the alternative of legal fees in making a claim against the estate.
Couples with dependent children should give thought to what happens if they are both killed at the same time in an accident. Single parents should consider what will happen to their children if they die. Anyone with parental responsibility can appoint in their will another person to act as guardian to children. If there is no will, the issue of guardianship would have to be decided by the court, and the guardian appointed could not be the person the deceased would wish for.
Just as important is financial support for the children and providing money for the guardian’s expenses.
If you own a business and want it to continue after your death, provision for this can be made in a will. If that is not done, the business could be sold on your death and all employees would lose their jobs. If the business is a private limited company, a will can determine what happens to your shares on your death.
When a house which is subject to a mortgage is given by will without any provision for the mortgage to be repaid, then the person receiving the house is responsible for the mortgage payments. The lender could call in the mortgage, resulting in the house having to be sold. A will would make provision for repayment of the mortgage.
By making a will, you can avoid paying unnecessary inheritance tax.
There are a number of ways to go about making a will, and which is chosen should depend partly upon the complexity and size of the estate. For a simple family will there is really no reason, in most cases, why this can not be dealt with at home. For more complex wills, possibly creating trusts, and with particular tax avoidance clauses, specialist help and advice should be taken.
How do you go about making your will?
There are a number of alternatives:
- The do-it-yourself will. There is probably no reason why anybody can not prepare a simple will for themselves. Will kits with full instructions are available to help for a few pounds. LawZone have a number of will precedents which can be downloaded for a few pounds, and contain all necessary information to make a straightforward will.
- Solicitors. Most solicitors firms will prepare a will for you, but it is going to cost. Where the estate is large and complex and perhaps involves a number of trusts, serious consideration should be given to instructing a specialist solicitor. However, you should be aware that the cost may be considerable, as most solicitors will charge around £150-£200 an hour.
- Specialist will writing services. There are a number of specialist paralegal firms who prepare wills. As a consequence, they have very considerable experience and expertise, and will draft a will for often less than £100. However, be warned. They will try to talk you into appointing themselves as executors of your estate. Never agree to this.