Guest article written by Catrin Griffiths, Wendy Hopkins Law.
A question for you - what do Princess Diana, Marilyn Monroe and Whitney Houston all have in common?
Apart from their sex, wealth and notoriety, did you know that all three prepared wills prior to their passing. And here’s my confession… up until 6 months ago, I did not have a will in place. As a solicitor specialising in wills and probate I really should know better. But up until my daughter’s birth, I was naively content to play Russian roulette with the future of my estate. Becoming a parent made me realise my own immortality and consequently a will was swiftly drawn up and signed.
Naturally talking about death and what happens after our days is a subject people want to avoid discussing but it’s crucial that we face up to the inevitable. It may be an old adage but it remains true that there are only 2 certainties in life - death and taxes. Failing to plan for the inevitable could lead to families losing out on an inheritance or losing out by way of increased probate fees and solicitors fees (and let’s face it, who wants that).
A will allows you to provide for partners, cohabitees, distant relations, friends and last but certainly not least charities. Charities earn valuable funds from legacy giving in wills and it is a crucial source of income for them, especially so during these testing and troubling times, with people being unable to run marathons and hold other fundraising events.
A properly drawn will can discharge the moral responsibility that each of us have to our family to ensure that they are well looked after and not finically embarrassed, for example, either by a spouse having too little inheritance, or in the case of children, perhaps inheriting too much too soon. Preparing a will also enables you to appoint a legal guardian for your children if all those with parental responsibility for the children have sadly passed away.
Importantly, the lottery of intestacy laws which apply if we pass away without making a will are completely avoided if a will is made. For example, if you were to pass away without a will (known as dying intestate) and you leave a spouse or civil partner, and children, it is a common misconception that your spouse will inherit the entirety of your estate. Instead, your spouse will receive a sum of £250,000, your personal possessions and half of your residuary estate (i.e half of what’s left). Your children are then entitled to the other half of the residuary estate once they reach the age of 18. Does this provide ample provision for your spouse? What if your children were to inherit half of the family home at the tender age of 18? In my mind, this is far from ideal.
Conversely with a more modest estate and perhaps dealing with a second marriage situation, the intestacy rules could result in the new spouse inheriting all of the estate with the children receiving nothing. Again, I question the fairness of this result.
But what if you’re like me and you are cohabiting? There is no such thing as a common law marriage, therefore unmarried couples, regardless of how long they have been together will receive nothing under the intestacy rules.
If you are not married and die intestate the estate will be distributed according to the intestacy rules, with children inheriting first, followed by your parents, your siblings and then your nieces and nephews. If there are no other living relatives, your estate will be inherited by your cousins. Fundamentally, if you have no living relatives at all, the estate will be passed to the Crown. There is no provision whatsoever for a cohabiting partner. I am currently dealing with a case whereby the deceased partner of my client died without a will. His estate has been inherited by his two adoptive sons despite the fact that he was not on speaking terms with one of his sons, for over 17 years. Consequently, litigation has ensued against the estate for financial provision for my client under the Inheritance (Provision for Family and Dependents) Act 1975. My client has already paid thousands of pounds for her legal fees.
Therefore, I conclude that the moral of the story is as follows - the only way to make sure that an unmarried partner is provided for in the event of your death is to either get married or to make a will, and making a will is unquestionably cheaper.
When it comes to making a will, I implore you not to reach for the home made will pack. There are so many pitfalls involved in the drafting of wills. Those who engage in the work without the required specialist knowledge will risk negligence claims from aggrieved clients and their families. For a modest fee, in most cases, a properly drawn up will can be prepared by a qualified solicitor. It’s a small price to pay for the peace of mind that is consequently achieved. So, what are you waiting for? Join Whitney, Diana and Marilyn’s club.