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10 January 2019

Five bad reasons to put off making (or remaking) your Will

Everyone knows they should make a will and then keep it up to date, but too many of us don’t manage to get around to it.

It can seem easy to find reasons for that delay, but those ‘reasons’ will rarely stand up to scrutiny. A will that is a stop-gap, but is at least up to date, is infinitely better than not having a will, or having one that is out of date.

Here are some of the commonest ‘reasons’ for delay, and why they are not really valid.

1 I don’t need a will because my wife / husband will inherit everything anyway, and that is what I want to happen

Wrong. If you have children, your wife / husband / civil partner will not inherit everything unless your property and assets (your estate) are worth less than £250,000. Assets over that value will be shared between the spouse and the children. The surviving spouse may well end up not even owning the whole of the family home. If a spouse or civil partner is to receive more than the stipulated amount, a will is needed to make that happen.

If you and your spouse have no children, then under the laws of intestacy the spouse does indeed receive the whole estate, but that may not in fact be what you would, on reflection, want to achieve. For example, there may be special personal possessions or inheritances from your side of the family that should pass to your siblings or nephews or nieces, not to your spouse. Many families are able to sort this out amicably but, despite expectations, not all manage to do so and this can cause considerable distress.

If you are not married to, or in a civil partner relationship with, your partner then a will is vital. Irrespective of how long you have been living together, or whether you have children, the starting point is that a cohabiting partner receives nothing if there is no will. There is no such thing as a ‘common law spouse’. The partner may have to go to Court to receive a share, and even then it might be very much less than you would have intended or expected.

2 It is so difficult to decide who to appoint as guardians for my children, so updating my will has to wait until I can sort that out

There is no doubt that trying to decide who would be the guardians of young children if the worst were to happen is one of the most difficult decisions a parent has to take – and of course in most cases it proves to be unnecessary because death does not intervene. Even if it proves impossible to make a decision just yet about guardianship, a will that puts at least the financial structure in good shape is very much better than nothing. Guardians can be appointed later in a separate document. There are ways around every problem.

3 I have to admit that my will is getting pretty old now, but my family circumstances haven’t changed that much, so it will do for the time being

Wills can become out of date not only because of changes in family circumstances, but also because of changes in tax law. Recent years have seen major changes to the tax code affecting inheritances on death: what was once a tax opportunity may now be a trap, or the other way around.

4 My son/daughter’s marriage is going through a bad patch so I don’t want to make any final decisions until I see how things turn out

If there is any possibility of divorce, this makes it doubly important to shape the will to try to ensure that, should the parent die, a son or daughter’s inheritance would not be regarded as assets to be divided between the parties on a divorce. Appropriate will drafting can help here.

5 I know my will is a bit out of date but there’s no need to hurry to change it because my family could always do a Deed of Variation to alter it

Deeds of Variation can be invaluable as ‘first aid’ after a death, sometimes allowing the will to be adapted in a way that makes more sense in changed circumstances. It is not always the case, however, that a structure created using a Deed of Variation will have as favourable a tax analysis as if exactly the same arrangement had been embodied in the will itself. Moreover it should not be assumed that the Deed of Variation route will in fact always be available following a death. For example, it cannot be used if minor beneficiaries are involved.

If circumstances are uncertain or evolving then it is best to make a will that has sufficient in-built flexibility to allow the provisions of the will to be adapted.

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