Death along with taxes is a certainty for everyone. Whether it is estate planning or dealing with the affairs of a loved one common sense and compassionate legal advice is a must.

What difference does having a will make?

It is important for you to make a will because if you do not, and die without a will, the rules on intestacy decide what happens to your property. The rules provide that if you are married and have children, your spouse will automatically get two thirds of your assets and your children will get one third equal between them. If you are single and have no children then your assets will go to your parents if they are still alive. If you are single and your parents are deceased, the rules on intestacy provide that your estate passes equally between all your brothers and sisters. Not only may this not reflect your wishes, but it may result in greater tax being paid by the beneficiaries.

A will can also ensure that proper arrangements are made for your dependents and that guardians of your choosing are appointed by you for your children.

What difference does having a will make?

It is important for you to make a will because if you do not, and die without a will, the rules on intestacy decide what happens to your property. The rules provide that if you are married and have children, your spouse will automatically get two thirds of your assets and your children will get one third equal between them. If you are single and have no children then your assets will go to your parents if they are still alive. If you are single and your parents are deceased, the rules on intestacy provide that your estate passes equally between all your brothers and sisters. Not only may this not reflect your wishes, but it may result in greater tax being paid by the beneficiaries.

A will can also ensure that proper arrangements are made for your dependents and that guardians of your choosing are appointed by you for your children.

The rights of Children and Spouses

Where a person dies leaving a spouse and children, the spouse has a legal right to one third of the estate, regardless of what is contained in the will. Where there are no children a spouse is entitled to one half of the estate.

In the case of a Separation, this legal right is not automatically revoked as the spouses are still married in the eyes of the law. Even in the case of divorce, while the legal right ceases to exist, the courts may make an order providing for the surviving ex-spouse from the estate if the Court believes that proper provision was not made for the estranged spouse during the lifetime of the deceased.

Children by contrast have no automatic rights, however if a child feels disenfranchised by the provisions of a will they may bring an application to the courts. Known as a “Section 117” application, the courts will look to whether the testator has “failed in his/her moral duty to make proper provision” for the child. It is up to the courts to decide on whether proper provision was made in each circumstance.

If a child has worked in a family business or stayed at home to mind a relative they may also be in a position to claim from the estate of the testator.

How do you make a will?

Before you make a will you need to decide on the following;
1. What assets you have
2. Who the beneficiaries will be (i.e. the people who will receive something in the event of your death)
3. Who you will appoint as executors (two trustworthy people who will administer your estate in the event of your death)

While it is possible to draft your own will, it is generally regarded as unwise as it is an important legal document and any errors can result in a prolonged legal dispute between beneficiaries. Going to a solicitor will avoid the possibility of prolonged litigation over your estate, will reduce the possibility of beneficiaries facing a large tax burden, but more importantly will ensure that effect will be given to your wishes.

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