A Will permits you to do many things that would not be possible if you were to die Intestate (without a Will). This includes specifying the person(s) who will administer your estate, giving direction to your executors as to what is to happen to specific assets, achieving desired tax and estate planning objectives, protecting your assets from paying for Long Term Care fees and indicating who should be the custodians of your young children.
Dying without a Will (intestate) will have various consequences. Firstly, the cost of administering your estate will be higher, and the person who is given authority to administer your assets will not necessarily be someone you would have chosen. The distribution of your estate is fixed by statute, irrespective of your intentions or the beneficiaries needs, with all amounts paid out to heirs as soon as they turn 18 years of age. In the meantime, trustees are limited in the scope of the investments they can choose to make on behalf of minors, with the Children's Lawyer, a government appointee, administering the share for a child. If you have children your spouse may not inherit everything.
Yes, in England and Wales you can write your own Will, but there are many traps for the unsuspecting which could result in assets passing to persons not intended to receive them, because key Will provisions are invalid, or because the person's choice of words run contrary to a legal rule or principle of which you were unaware. The best advice is to rely on a professional Will writer to take your instructions and translate them into legally effective provisions in your will.
Without a Will, your partner has no entitlement to keep anything that belongs to you. All of your assets will be distributed according to the law. Equally the same will apply to you, if your partner has no Will.
If you were to die without a Will, the law determines who gets your assets and how much. These rules say that your spouse, if you have children, gets only the first £250,000, including the value of your house (if the house is worth more than £125,000 this may have to be sold). Without children the spouse will get the first £450,000. Beyond that, things become more complicated.
Only if your assets total more than £325,000 will your beneficiaries be liable to pay 40% on everything over this amount. You should talk to a professional experienced in tax and estate planning who can give you good advice in minimising exposure to this tax on your death, whether through your will or by taking appropriate steps during your lifetime. It is possible to save thousands of pounds through simple measures.
It is important to review your will whenever there have been changes in family circumstances (for example, births, deaths, disabilities, marriages, separation or divorce) or if there has been a significant change in your wealth, whether an increase or a decrease. Even if no such changes have occurred, there may be changes in income tax or other laws in the interim, so we would recommend that you review your Will at least every two years.
Divorce automatically revokes gifts to a former spouse and removes that person as an executor if he or she was so appointed, unless the Will provided otherwise. However, if you don't make a new Will and alternative arrangements for the bequests that would have gone to your spouse, your executors could well face a partial intestacy . Furthermore, unless you make a new Will, your executor(s) will be obliged to notify your ex-spouse that an application for probate has been submitted to the court, and your former spouse may participate in the proceedings if he or she wishes. They may argue that your will indicates an intention that they should receive bequests under the Will notwithstanding the divorce.
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