Wills serve a crucial purpose, not least of which is to ensure that following death, surviving family members are left with certainty as to the wishes of the deceased. Sadly, research shows that roughly only one-third of adults hold Wills, and of those that do, it is estimated 1.5m have unwittingly allowed their Will to become void after getting married. The reasons why people do not seek to put in place a valid Will are varied, but wealth is by no means always a factor. History is littered with immensely wealthy individuals who have passed away without ever drafting a Will. In August 2018, Aretha Franklin died without a Will, leaving her four sons to work out the extent of her estate (estimated to be worth $80m), and how it should be divided. Not only can such a process be immensely stressful, potentially taking a toll on previously strong familial bonds, it can also take many years to resolve. This raises the question why Ms Franklin, and many others, put off organising their affairs until it is too late, and die intestate (the formal term for dying without a Will). Was it that the thought of having to divide up her wealth was simply too difficult to contemplate? Or did she just never get around to it?
Don’t leave it to chance
Dying intestate means that a standard set of rules – known as the rules of intestacy (the Rules) – will be applied for the management of your estate on your death. The Rules differ depending on whether or not there is a surviving spouse (whether by marriage or civil partnership). In England and Wales, if an estate is worth £250,000 or less, the surviving spouse will automatically receive everything. Any value in excess of £250,000 will be apportioned with the husband, wife, or civil partner receiving half, and the other half passing to any living children, grandchildren or other direct descendants, in order of existence. If there are no direct descendants, the husband, wife or civil partner receives all of the estate.
If there are no surviving relatives, the estate automatically passes to the Crown.
While dying without a Will should mean your estate will be passed to your spouse and/or direct descendants, this may not reflect your wishes. And in addition, it may be contrary to the expectations of family members, or others who believed they would inherit all or part of your estate. It is for this reason that dying intestate should be avoided at all costs, and a formal Will be drawn up, which is maintained as your life progresses (e.g. on marriage, the birth of children, or death of a spouse).
The perils of a DIY Will
So far, we have established that dying without a Will can be highly detrimental to those left behind, but this is not mean that a Will ‘at any cost’ is better. Drawing up a Will which accurately reflects your wishes but also correctly considers any complexities of your unique situation will ensure it can be used in the manner intended and without dispute. To draft a comprehensive Will, it is essential to engage a legal expert who will listen to your life circumstances, wishes, and reflect back to you questions you may never have considered previously; for example, how overseas assets should be treated, and any inheritance tax planning considerations. Just this latter question can be deeply complex – with a wide range of rules and exceptions which must be understood.
There is also a real risk that DIY Wills, while providing a sense of confidence that your affairs are in order, may be technically invalid. Wills can be deemed invalid if not witnessed or signed properly, the deceased lacked mental capacity at the time of writing; the person was under 18 years of age, or if not made in writing. And even if a DIY Will is deemed valid, there remains a considerable risk of errors and ambiguity which may necessitate legal intervention and expertise to interpret. So serious is this issue, one Solicitor that specialises in this field once disclosed she had never seen a DIY Will that was error free. Mistakes leave the document open to legal challenges by those who believed they were due to inherit from the estate in question.
For those who wish to leave their loved ones with an inheritance following their death, the only way to do so with the confidence that your wishes will be carried out faithfully, and within the boundaries of the law, is seek the expertise of a lawyer specialising in Wills, who will carefully draft and store the document for you. It is the finer details that often matter the most; as such, a Wills Solicitor will ensure that every aspect is well-thought-out, even asking questions you had most likely never considered. And by engaging a Wills expert whilst young, you can be assured you have put in place the necessary arrangements regardless of the eventualities of your life – something you can never accurately predict.
Rosie Bracher are specialist family law solicitors based in Barnstaple. We have the knowledge and expertise to advise you on all matters involving divorce and family law. Please contact our office on 01271 314 904 and arrange to speak to one of our team.
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