A reminder of some of the reasons as to why clients should not only write a will, but also review it if their circumstances change
Research conducted by various professional bodies shows that a large proportion of the UK population have not written a will, regardless of owning property or other assets. While a will is often used for tax planning reasons and to protect assets, there are many other reasons as to why clients ought to write a will.
Ensure the will is valid and executors are appointed
The starting point is to always ensure that clients have a valid will in place. Broadly, for a will to be valid, it must be written by an adult, so aged 18 or over, who is of sound mind. It must be in writing and signed and dated in the presence of two adult independent witnesses. This means that it cannot be witnessed by anyone who can benefit under the terms of the will.
Naming who should act as executors is vital. The executors are responsible for dealing with the administration of the estate. This means that they must complete the inheritance tax account, pay any inheritance tax that may be due and apply for probate, if required. Once grant of probate has been received, the executors then have the legal right to deal with the estate – so they would be required to pay any debts, taxes, expenses, etc., and then pass the assets on to those who are entitled to benefit under the terms of the will.
Provide funeral instructions
A will can include funeral details so, for example, the type of service the individual would like. In addition, some people may have strong feelings about whether they wish to be cremated or buried, whether they would like certain songs played or readings read. All of this can be specified in the will, thereby providing guidance on the client’s overall wishes and reducing the burden for loved ones. It is also worth checking with your clients if they have taken out a pre-paid funeral plan to cover the cost of the funeral.
Appointing guardians and deciding what should happen to any pets
Clients who have minor children need to consider who should act as a guardian to look after the children upon their death, otherwise the family courts will decide where the children should go. It is also advisable to consider the ages of such children and what provision is likely to be needed for them. A will can ensure that children will be properly looked after, because funds can be set aside for their benefit – usually by including a trust to that effect in the will.
In cases where there are pets, it is also advisable to consider whether a family member or friend would be prepared to look after them and what provision is needed for them. Again, funds could be set aside within the will for that person to use to look after any pets.
Protecting assets and ensuring the right people benefit
Where a client dies having not written a will, they are deemed to have died intestate. This means that, in England, their assets are distributed in accordance with the Administration of Estates Act 1925 – so the law will decide who should inherit their assets. Even though the intestacy rules are designed to protect the individual’s family, this can still cause several problems, especially for those in a long-standing relationship who are not married or in a civil partnership. This is because partners have no automatic rights under English law. Equally, for those who are separated but not divorced, their spouse or civil partner would inherit part of their estate on intestacy. Further, if there are no close relatives, assets could pass to distant relatives whom the deceased had no intention of leaving assets to, or, if there are no relatives, assets could pass to the Crown.
Following on, one of the most important reasons for writing a will is to ensure that assets pass to your client’s intended beneficiaries on death. It is possible to specify who should benefit, and whether certain individuals should inherit specific assets – so, for example, particular items of jewellery, paintings, other personal possessions, collections, etc.
Dealing with digital assets
Social media has become ever more prolific. Therefore it is advisable to include provision for what should happen to any digital assets within the will. It is possible to name a digital executor to manage these assets on death and it is advisable to include information on how such digital assets should be handled, for example, whether an account should be closed or not and what should happen to any photos and videos.
Tax planning
It is also advisable to ensure that the will is written in a way to maximise tax savings. Prior to the introduction of the transferable nil rate band, in many cases, the nil rate band was often wasted on first death by leaving assets to a surviving spouse/civil partner which would otherwise pass exempt. Many couples now rely on the transferable nil rate band rules to ensure use of the nil rate band on second death. That said, given that the nil rate band has remained at £325,000 since 2009/10 and is expected to do so until 2025/26, for some, making use of the nil rate band on first death ought to be considered. This reduces the value of the estate on second death, which can be beneficial for the purposes of making use of the residence nil rate band and also any growth will be outside of the estate of the second person to die.
The will can therefore be drafted to maximise inheritance tax savings. And, for those who wish to leave assets to charity, if 10% or more of the net chargeable estate is left to charity, the rate of inheritance tax payable on the taxable estate is reduced to 36% instead of 40%.
Powers of attorney
Even in cases where a power of attorney has been appointed, while they are able to deal with financial affairs as well as decisions relating to health and welfare, they can’t write a will on behalf of the donor for whom they are acting. This means that, for those who do not have a will in place, if they lose capacity, the process of putting a will in place can be both complicated and lengthy.
Finally, let’s not forget the need to update/review a will
For many, even if they have written a will, ideally it should be reviewed whenever their circumstances change, for example, if the individual gets married, divorced, becomes a parent or receives an inheritance.
If they already have a will in place and get married or enter into a civil partnership, the will is automatically revoked and so a new will would need to be made. The same rule, however, does not apply if they get divorced or their civil partnership is dissolved. In that case, anything left to the ex-spouse/ex-civil partner in the will would be dealt with as if they had died on the date that the marriage/civil partnership legally ended. This means that any gifts/assets which may have been left to the ex-spouse/ex-civil partner will no longer pass to them, although the provisions in the rest of the will would usually be valid and so could cause unintended consequences where their circumstances have changed and they wish to redirect assets to other people. Whatever the ex-spouse/ex-civil partner was set to inherit would then be passed on to the next beneficiary who is entitled to it, in line with the terms of the will. If everything had been left to the ex-spouse/ex-civil partner, with no other beneficiaries named, then the estate would be dealt with under the intestacy rules. So, if a will is not updated to reflect a divorce or the dissolution of a civil partnership, the estate might not pass to the intended beneficiaries. This could also mean that new partners or dependants aren’t provided for.
Comment
Hopefully this sets out some important aspects that can be discussed with your clients in terms of what they should consider in relation to writing and reviewing their will. In addition, clients also ought to be reminded that writing a will can save time and stress for loved ones as it makes it easier for them to sort everything out on death.
