A Will is a signed legal document (by you and witnesses to this) that lets you decide what happens to your estate; money, property and possessions etc. after your death. Making a Will ensures that when you die your estate is shared according to your wishes.
If you are not married (which includes civil partnerships) then when you pass away your partner has no legal right to inherit any of your assets.
Your Will can only manage assets you own at the time of your death it cannot protect your assets whilst you are alive. If you want to protect your assets during your life, then it is essential you use Trusts and Lasting Powers of Attorney.
Other factors you should consider
If you die without a Will, intestate, there are certain rules, made by HM Government, which determine how your money, property or assets should be allocated. This may not be in the way that you intended.
If you have a spouse or civil partner and children, your spouse or civil partner will inherit all your personal possessions and at least the first £250,000 of your estate, plus half the rest. Your children will then be entitled to the other half of the balance.
If you have a spouse or civil partner but don’t have children, your spouse or civil partner will inherit your whole estate. This includes your personal possessions.
If you have children and your spouse or partner is deceased, your children will inherit everything, divided equally between them.
If you don’t have a partner or children then parents, brothers, sisters, and nieces and nephews may inherit your estate.
Complexity and ongoing validity
You can create your own Will and many people buy off-the-shelf DIY packs and do their own. However, ‘caveat emptor’ as there are many pitfalls and our advice is to take professional legal advice particularly if you want to protect your assets during your life.
Divorce and unsuitable partners
If your marriage is ended by a court order your will is not void nor invalid. You should make a new will immediately after your divorce if your spouse or civil partner was a beneficiary or a trustee.
If you marry, remarry or enter a civil partnership, this usually makes a previously existing will invalid.
When someone dies, if part (or all) of their Estate is set to be inherited by a beneficiary who has been declared bankrupt, it will directly impact on how that beneficiary is able to inherit. The inheritance must be disclosed and will be used to pay off outstanding debts before being passed to the beneficiary.
If you need care your local authority will do a means test. This will probably take into account the value of your property, as well as your income and savings. This could erode the final value of your assets you bequeath to your loved ones. There are totally legal ways you can protect your assets – look at Trusts.
Inheritance Tax is a 40% charge on any assets above your personal allowance, currently £325,000 per person. If you are likely to pay the 40% tax then there are ways to reduce this by: making outright gifts, setting up a Trust, keeping your assets while reducing your estate, managing Inheritance Tax without making gifts. For more details contact us. This is subject change and any changes can be checked with HMRC.
If you are thinking of disinheriting a close relative from your Will please be careful and seek legal advice; (we can help) it is more complex than you might believe. The 1975 Inheritance Act protects individuals who might reasonably expect to receive a financial provision from the deceased’s estate; simply dis-owning them and cutting them out of your Will may not be enough.
If you have a family member who is receiving disability benefit and you leave them a lump sum in your Will it is possible you will affect these payments. You can set up a Discretionary Trust which can give them financial security and ensure little change to their quality of life, talk to us for more information.
Children and Trusts.
It is possible to create Discretionary Trusts for children who aren’t capable or responsible enough to deal with either the capital or its income. It is possible to pre-determine how often payments are made and to impose conditions on the beneficiary and even hold it for a specific point in their lives.
A Trust is a legal method / process of managing your assets (money, investments, land or buildings). There are different types of trusts and they are taxed differently. The key participants are:
the ‘settlor’ – the person who puts assets into a Trust
the ‘trustee’ – the person who manages the Trust
the ‘beneficiary’ – the person who benefits from the Trust
Your life insurance may also need to be considered to be put in trust. Speak to us about this and we can help.
Lasting Power of Attorney
A ‘lasting power of attorney’ (LPA) is a document which gives an ‘attorney’ (your representative) legal authority to make decisions on your behalf (you the ‘donor’). Crucially, the power continues after you lose the mental capacity to make decisions for yourself.