Have you made a Will and reviewed it recently?
Did you know that if you do not have a verified will, should you die, your assets may not necessarily go to whom you desire?
Most people genuinely care about their spouse, their children and their money, albeit not necessarily in that order. However, so many omit such a straightforward and vital component of financial planning; the writing of a last will and testament.
Understanding Intestacy and the tragic effects of dying without a valid will are often overlooked. Many clients incorrectly assume, that assets will automatically pass on to their spouse or civil partner.
Don’t let this be you! Read on to understand why having a will is so vital. Just as important, why dying overseas can incur devastating consequences not just emotionally but financially for your loved ones.
In some countries, forms of forced heirship apply and it is normal to enjoy testamentary freedom, meaning the ability to choose who should benefit from your estate upon your death. However, unless a valid will is left behind, this right is wasted and the State, via enacted Intestacy legislation, will dictate how your assets will be distributed.
An administrator, usually the primary beneficiary under the intestacy rules, is appointed and applies for a Grant of Administration. If there is no spouse and multiple children, this may cause problems as they must decide amongst themselves who should apply for the Grant.
If a will is in place, you have already chosen Executors and they are the people you considered most appropriate for this task.
Settling an estate can often be a lengthy process, but the lack of a will may delay things further. When there is no will, the estate may not be formally contested, but there may be illegitimate children, adopted or step children to consider, The deceased may have financial dependents that the intestacy rules do not contemplate, consequently use of a Deed of Variation or Family Arrangement is required to correct the unintended result. A Will would make it clear which beneficiary, or classes of beneficiary, should be entitled and it may also reduce inheritance taxes by appropriate planning.
Intestacy often causes additional stress on loved ones, therefore it must be avoided. Clear instructions in a valid will and the support of a Testator’s guidance will help evade or reduce family squabbles.
A will must be in writing and be signed by the Testator in the direct presence of two independent witnesses, who cannot be beneficiaries. Witnessing through a window or over video conferencing is in-sufficient. If you are subsequently married, your will becomes void and must be re-written. Executors can be beneficiaries.
Although common for a last will and testament to cover your worldwide assets or ‘Worldly Goods’, some countries may not recognise a will written under the law of another jurisdiction. Therefore, it is important to reference any prior will agreements to ensure the subsequent will does not take precedence. If assets are sits in a country where Forced Heirship applies, for example, countries applying Shariah Law, testamentary freedom is likely restricted.
Post death, if beneficiaries named in a will prefer to amend their entitlement in favour of a third party, this is possible within 2 years using a Deed of Variation. This is often used when a spouse is independently wealthy and wishes to skip a generation, or perhaps for inheritance or succession planning reasons.
*This article is drafted assuming the application of the law of England and Wales. It is correct to the best of our understanding as at 1st April 2020 and must not be relied upon in any planning. Bespoke advice should always be sought, especially by those with complex or high value estates.
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THERE ARE TWO TYPES OF UK ASSET WILLS
ADVANCED DECISION LIVING WILL
Create a UK valid (advance decision) Living Will through our online platform. Modern medicine now means that life can be sustained, past the point at which a basic equality of life is enjoyed, through life-sustaining treatments. An Advanced Decision Living Will means that you can request certain life sustaining treatments to be refused, should you not be able to make them. These wishes will be communicated to your family, carers and health professionals.
PROPERTY AND FINANCIAL LPA
Create a UK valid Property and Financial Lasting Power of Attorney (LPA). Unfortunately, through illness, old age or accidents, we can lose the ability to make or communicate decisions. Having a Lasting Power of Attorney (LPA) makes the management of your affairs significantly easier if you become unable to do so. Our online platform ensures you can pass the crucial decision-making power to someone you trust, in this situation.
WHAT TO INCLUDE IN YOUR WILL
The process of writing a will can be difficult. Thankfully, this guide will take you through step-by-step to ensure your will includes everything necessary.
The first stage of will writing involves creating a list of all your assets, this is also known as your estate. The list must include your property, your wealth and all your possessions. Write down an estimated value of your assets, based on what you believe they are worth.
Start by calculating the value of the assets – the easiest to calculate are your savings and pension along with valuable possessions, for example, your watches or other jewellery.
The value of these assets is generally non-volatile, meaning their value stays relatively constant.
Note: The inclusion of the value of your pension depends on the associated death benefits for the given scheme. If you are unsure on the death benefits associated with your pension – see the Pensions section for more information or get in contact with me today.
All the advice I offer is free and without obligation.
This rule is particularly troublesome if the main residence was owned outright by the deceased or owned as tenants in common with the surviving spouse or civil partner. The value of the property transferred to the spouse or civil partner uses up some, or all, of the entitlement under this rule (i.e. the £270,000 plus 50% of the balance. If this entitlement is lower than the property value to transfer, it is difficult to inherit the home unless funds are transferred back to the estate from the assets of the survivor).
Intestacy law does not currently recognise, or benefit, a Common Law partner, who would receive nothing. The Law Commission recommended a change in 2011 but this has not yet been enacted.
2 Children includes adopted children, known illegitimate children but not unadopted stepchildren. If under 18 and unmarried, a Statutory Bereaved Minor Trust is created.
3 In equal shares if more than one.