Should I make a Will? Well some people believe that wills are only for people over a certain age, or only if you have assets to ‘hand down’ when you die, and whilst neither of these are true, it is also important that every parent must make a will.
The ongoing Covid pandemic has focused many people’s minds on making a will, and the recent air crash in Indonesia shows that death can occur unexpectedly in more normal times.
If you don’t have a valid will in place at your death the Intestacy Rules decide how your estate will be distributed and who can take out the Grant of Representation needed to administer your estate. In some circumstances this may be appropriate but in many cases it isn’t, and if the deceased has children under the age of 18 or is not married to their partner it can cause serious problems.
In this blog I give six reasons why every parent should make a will.
1. To Appoint a Guardian For Your Children
A will is not just for dealing with your cash and other assets on your death. You are able to appoint a Guardian for your children in your will in case the worst happens and your child or children lose their parents before reaching the age of 18.
Appointing a guardian in your will ensures that someone you choose will have parental responsibility for your child or children, thereby having the same rights and responsibilities for them in respect of their health, education as you have.
More information about Testamentary Guardians can be found in our blog about this at https://www.thorntonjones.co.uk/site/blog/wills-probate/guardianship-of-young-children.
2. To Ensure Your Children and/or Grandchildren Inherit at an Appropriate Age
Under the intestacy provisions the age for children to inherit is 18. When discussing wills with clients we often hear that this is considered too young and concerns are raised that an 18 year old is not mature enough to manage a potentially significant amount of money.
By making a will you can decide what age is appropriate for your descendants to inherit if you feel 18 is not appropriate. This does not mean that the child or grandchild cannot benefit from any part of their inheritance before reaching the age stated in the will as the Trustees (the people looking after their inheritance) can agree to advance funds before that age for appropriate purposes, such as providing assistance while they are at university.
3. To Protect Disabled or Vulnerable Children
Sometimes a parent knows that their child will never be able to manage their own inheritance due to a lack of mental capacity; or they may be physically or learning disabled meaning that they will be reliant on state support for the remainder of their life. We can discuss options with you about how to benefit them in a way that won’t affect their benefit entitlement or lead to a Court of Protection Deputyship appointment being needed so someone can manage their inheritance for them.
By including (for example) a disabled person trust or discretionary trust in your will you can ensure that your children can still benefit from an inheritance, perhaps by paying for holidays for them or buying a property for them to live in, whilst also ensuring that their state support won’t be affected or a Court of Protection application being required.
4. To Ensure the People You Choose Are In Charge of Administering Your Estate
If you are separated from your children’s other parent and you died before your children reached the age of 18 you could leave your family in the difficult position of your ex-partner being the person responsible for administering your estate on behalf of your children.
Under the Intestacy Rules, the surviving parent is the person with the priority to take out the Grant of Representation if minor children are the beneficiaries, along with another person of their choosing. This may be not be a problem, as we would all expect the parent to act in the best interest of their children, but it may not always be the best option, particularly if the surviving parent is estranged from the children.
By making a will you choose who you want to administer your estate on your death by appointing executors and trustees. They can be other relatives, friends or professionals. Your children can also be appointed once they are over the age of 18.
5. Common-Law Spouses Do Not Inherit Your Estate Automatically. Neither Do Step-Children
If you are not married to your children’s other parent then they will not inherit any part of your estate (that is not held as joint tenants) as under the Intestacy Rules and your children will take priority over them. This could lead to your current partner having to contest your estate for their own financial security.
Many families are made up of children from previous relationships as well as children from the current one. The Intestacy Rules have a very strict definition of children and it does not include stepchildren which means that they would not inherit.
By making a will you can ensure that everyone you consider to be part of your family inherits from you.
6. Asset Protection
As families become more complex, Asset Protection Wills are becoming more commonplace. But what is an Asset Protection Will? With an Asset Protection Will, some assets are ‘ring-fenced’ on the death of the first parent to die, thereby protecting these assets for that parent’s children (either their own children from a previous relationship or the couple’s joint children, or sometimes both) although they may not receive them until after the death of the surviving parent. This means that that the children are guaranteed an inheritance even if the survivor spends all their own assets during the remainder of their lifetime (perhaps on enjoying life or perhaps on care fees).
We have seen estates where the surviving parent has remarried but not made a new will meaning that the intestacy rules apply on their death and all or most of their assets pass to their new spouse. We have also seen situations when the survivor writes their children or stepchildren out of their will. By protecting some of their assets on the death of the first parent to die the children will receive at least some inheritance.