Where there's a Will

Nearly one in three over 55s has not made a will.

More than half of those aged 45-54 have not made a will. Among the over 55s it is one in three.

Some people do not realise that, without a will, an unmarried partner has no right to inherit anything. And around half wrongly think that a spouse will get everything if there is no will. But that is not true. In England and Wales if you have children your spouse will get £250,000 but the children will share the rest. So your family home could end up being jointly owned by your spouse and children. Even if you have no children some of your estate could go to your parents or siblings.

If you have no spouse or children then your family inherits in this order: your parents; if they are dead your brothers and sisters are next in line and, if any of them are dead, their children take their share. If there are none then your grandparents are next. If they are dead then the final heirs are your aunts and uncles and – if any are dead – their children take their share. That can mean very distant heirs getting a share of the estate and relatives who have been closer to the deceased getting less or nothing. If no-one inherits then your estate will be held by the Treasury Solicitor on behalf of the Crown in what is called the Bona Vacantia Division. If heirs come forward the estate may be released to them.

The rules are slightly different in Northern Ireland and very different in Scotland (see further information below). But the danger of leaving loved ones without a clear inheritance remains throughout the UK if there is no will.

In England and Wales (but not in Scotland) if you marry or form a civil partnership any will you have made in the past is invalidated so if you do not make another you will be treated as if you had no will – intestate as the law calls it. Without a valid will your property can pass to a new spouse and then when they die to people you were not related to, bypassing your own children.

The same rules apply if your will is invalid or if no-one finds it. So it is important to make sure your will is properly executed by a qualified solicitor. They will normally keep your will safe and give you a copy. It is very important to tell your heirs who the solicitor is and where your will is kept. If no will is found after your death you will be treated as if you had not made one.

Who gets what
Before you go to a solicitor you should set down exactly what you want to happen. The first thing to decide is who will sort out your estate after your death – the executors. The best people to choose are two or three of the people who will inherit from you who. You can also name a solicitor or bank to act. But a professional executor will take over the process and charge a lot of money for doing a fairly straightforward job. Winding up an estate is a fiddly administrative task but not a difficult one (see Saga July 2011). So it is better and cheaper for your heirs if you name two or three of them to do the job.

Next you should write down what you own. Your home will usually be the biggest item but you should set out your bank accounts, any shares or investments – including National Savings – and any personal property, noting separately any items of particular financial value. If you have land or vehicles write those down too. You should also note any insurance on your life and any pension you are paying into or entitled to. You may also want to specify what happens to any online identity you have such as a website or Facebook pages. The total of what you will leave is called your ‘estate’.

Next you must decide what you want to go to whom – the beneficiaries. Make sure you specify people precisely with their full names, relation to you, address and, if you know it, date of birth.

If you want to leave particular items to named individuals you can. These are called ‘specific bequests’. Money is normally called a ‘pecuniary bequest’ and you can leave particular amounts to named individuals or, of course, to a charity. Once all these bequests are made the rest of your estate – the ‘residue’ – would normally be sold and the amount divided as you specified among other heirs. You can leave someone a fraction or a percentage of it – or of course all of it. Remember that your executors will first have to pay your debts including funeral expenses so there may not be as much left as you expect.

If you have a dependent child then you will want to agree a guardian. You may also want to leave property in trust for children to prevent them getting access to it until they reach a certain age. If so you will need to specify the trustees. If you shared a home with a partner you can leave them what is called a ‘life interest’ in it so that they can live their but on their death it will pass to, say, your children. Your solicitor can advise about these complex matters.

Sometimes a solicitor will suggest you keep some of the detail out of the will and put it in what is called a ‘letter of wishes’. But such a letter normally has no legal force so it is better to use it only for non-financial things like what funeral arrangements. The last thing you want to leave relatives is scope for arguing about what you meant or who should get what.

If you want to change your will you can get a solicitor to draw up a ‘codicil’ to amend it. That is cheaper than writing a new will but for all but the simplest changes it is safer to redo the whole will.

In England and Wales a will must be signed by you in the presence of two witnesses who also sign it. They cannot be beneficiaries. In Scotland only one witness is needed and you must sign each page.

Cost
You can make a will yourself – there are forms online – or go to a will-writer some of whom are very good, some of whom are not. It is safer to have the protection of going to a qualified solicitor.

In November more than 1200 solicitors throughout the UK will prepare a will free in exchange for a donation to the charity Will Aid. The suggested amount is £85 for a single will, £125 for a pair of wills for a couple, and £40 for a codicil. That is a less than the normal fee, especially in London or the southeast of England, and there is no VAT to pay. All the money goes to charity and if you pay tax it can be boosted through Gift Aid by 25% from the Chancellor.

Further information
Estates with no heirs www.bonavacantia.gov.uk
Will Aid has all sorts of useful information www.willaid.org.uk
Intestacy rules in Scotland: http://www.scotland.gov.uk/Publications/2005/12/05115128/51285

e-mail Paul Lewis on paul@paullewis.co.uk