None of us like to think about death, which is probably why so many people put off writing a will. But without one, your family could miss out on the legacy you want them to have and face the stress of sorting out your affairs, says James Briggs, wills and probate solicitor at law firm Rothera Sharp.
On the journey towards becoming a fully-fledged grown-up, fatherhood is often seen as the final stage. Suddenly life is filled with new responsibilities, like making sure your kids are eating the right food and what school they should attend. Of course, this isn’t just limited to your lifetime – you also have to face up to the reality of what will happen after you die.
As a solicitor, I have seen for myself the heartache caused to families when someone dies without making a will (intestate). Even the most straightforward of circumstances can be more complex than you think, with no guarantees that your final wishes will be fulfilled.
The best advice is to write a will, setting out exactly what you want to happen. While it seems like a daunting prospect, I promise it’ll be a real weight off your mind once it’s done. A solicitor can guide you through the process and ensure the will is legally binding, but below are a few things to think about beforehand.
Help! I don’t know where to start
It might seem obvious, but first of all think about the people you want to inherit your home, money and other belongings. If you’re not married to your partner, they have no automatic right to your estate, however you can name them as a beneficiary in your will.
Those who are married will inherit by default, although remember the government sets thresholds that may not be in line with your own. You might, for example, have assets worth more than £250,000 in which case the first £250,000 goes to your spouse and the rest will be split equally between your children and partner. But what if you want to leave more to your kids to ensure they will be financially secure, or everything to your spouse? Worse still, what if you die while separated from your spouse but are not yet divorced?
Of course, writing a will is not just about naming who will inherit your material possessions; more importantly it details who should have guardianship of your children should they still be under 18. This might be a grandparent, aunt, uncle or close friend. In English law, there are two distinct roles here – the “guardian” who looks after the welfare of your child or children and has what is known as parental responsibility for them; and the “trustee” who looks after their inheritance until they are old enough to inherit it for themselves. Many people choose the same individuals to fill both roles; but sometimes, the person you would choose to look after your children’s welfare may not have the best head for finances, or – particularly where there are larger sums involved – you might prefer to have an independent trustee or at least a second trustee alongside the guardian.
On the subject of when children will receive their inheritance, the default is that they get it at 18. Often my clients say to me that they are worried about whether their children will be mature enough at 18 to deal with an inheritance; so they might use the Will to increase this age to, say, 21 or 25. There might be tax considerations if you do this; you should make sure that you have taken proper advice.
It goes without saying that you must have a frank conversation with potential guardians or trustees before writing them into your will, explaining what is expected and finding out whether they are comfortable. Think about what they are like as a person too, for example, are they organised, trustworthy and good with money?
Some guardians may want to share the responsibility of looking after the children, so if you ask a couple, think about what would happen if they split up. As tough as these questions are, it’s better than the fallout that can ensue if you haven’t stated your intentions clearly.
Finally, you’ll need to choose an executor – a person who handles all matters relating to your estate, including paying bills and making sure everyone receives what they are owed. If you have already chosen a trustee, usually they are the obvious person to step into this role. This person can be anyone you trust, including your spouse, children over the age of 18, or a close relative or friend – they can also be a beneficiary.
It’s worth noting that you don’t have to wait until your children are born to include them in a will. By using phrases such as “my children”, you can provide for all the children you have during your lifetime without needing to remake the Will. If you find your wishes change, once the baby is born, or for some other reason in the future, you can update your will (known as a codicil) or write another, which is a very simple process assuming all the other details remain the same.
New parents naturally start asking big ‘what if?’ questions, and at Rothera Sharp we certainly work with a lot of young families. It’s common for people to take out life insurance, for example. Making a Will can be even more important to ensure your loved ones are taken care of.
Providing for children from your first marriage can be a minefield, not least because a second marriage can invalidate your existing will. This means your new spouse automatically would inherit your estate even if you wanted to leave it to the kids. Often, we’d advise setting up a trust in the Will, carefully worded to balance the needs of spouse and family; but as this is a complex area, it’s always best to get professional advice.
Finally, although relations with your ex may have soured, you should try to work together and come up with a single solution. The last thing you want is multiple guardianships from different wills – in death, as in life, you both need to have your child’s best interests at heart.
For more details on writing a will visit https://rotherasharp.co.uk.