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Do I need to make a will?

I am often asked “do I need to make a will” and of course the answer I give varies depending on who is asking the question.

As a solicitor specialising in wills and probate, I am sure that I should answer the question with an emphatic “of course you should”, but everyone’s circumstances and wishes will differ and there are those rare cases when a will may not be required.

I think what people should ask themselves is “what would happen if I died without making a will?”

I have detailed below some key points to consider:

Registering the death and arranging the funeral

Believe it or not, this is where an estimated 18% of family feuds following the death of a loved one occur.  There can be initial uncertainty as to whether you wanted to be buried or cremated, and this can be distressing to family members with whom you may not have had this conversation during your lifetime.

If there are arguments, it can delay the funeral as funeral directors are increasingly afraid to release the body until an agreement has been reached.

Who is the rightful “next of kin” and how do you prove it in the first few days after death?

It is much simpler to state in a will who you would want to appoint as an Executor to deal with the administration of your estate and what your funeral wishes are rather than try to provide documentation to prove you are the next of kin.

Dealing with financial Institutions and insurance companies

We all know that with data protection legislation in place it can be quite difficult to contact companies to speak about your own affairs, without having to answer multiple questions and passwords to confirm your identity.

Imagine what that may be like trying to speak about your loved one’s affairs with the institutions refusing to deal with you unless you can prove why you have the authority to deal with the estate.

An Executor under a will has the authority to act from the date of death and can prove this by providing the death certificate and will.  If there is no will, the person who wishes to deal with the administration of the Estate must make an application to the Court/Probate Registry to be appointed.

This can take many weeks, even months, and again may lead to disputes, especially if more than one family member has an equal right to apply.  Surely it is easier to appoint an Executor in a will?

Without a will, who would inherit my estate?

If you don’t have a will, the distribution of your Estate is governed by a set of rules referred to as the Intestacy Rules.  Under these rules, only your spouse or civil partner and other close family members may inherit your Estate depending upon its value.  The list is a hierarchy with preference given to family members who are more closely related.  It does not matter whether you are separated or getting divorced from your spouse or civil partner, they are still entitled to a share of your Estate.

Not all parents wish to make an equal provision for their children on death.  You may already have made lifetime gifts to one child and wish to equalise matters between your children on death.  One child may have additional needs, or your children may be under the age of 18 years old.  Who would look after them and be appointed as guardian?  Do you want them to inherit at 18? What if you do not see your children and do not wish to leave them anything?

The Intestacy Rules should not be a substitute for putting careful thought into making a will that is right for your unique circumstances. We are lucky in England to have testamentary freedom, which is not available in many European countries.  Testamentary freedom being the ability to leave our assets to whomever we like.

So, the question I ask you now is, do you want peace of mind that you have set out your wishes following your death?  Do you need to make a will?

If you need to make a will please contact me, Wendy Scarr at the contact details below.

Wendy was a Private Client Solicitor based at the firm's Harrogate Office. She has over 12 years of experience dealing with complex cases including taxable estates and probate work.

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