When planning for your child’s future, you invest time and money into giving them the very best but what if something happens to either parent or both? The Editor speaks with BTMK
Personally I haven’t yet created my Will; it is one of those things on my forever ‘to do’ list that I just haven’t got around to – but it’s dramatically important.
If anything happened to myself and my partner (god forbid), my daughter wouldn’t have a legal guardian – she could go into care, even if only for a short period. All of my assets would be held for my daughter and given to her at the age or 18! This would be far too young for her to be able to deal with that amount of money. Also, without a Will, I have no control over who the Trustees would be; it could be a family member I don’t like – or possibly don’t even know! Having a Will that isn’t updated can also lead to horrendous family disputes and problems. Wills don’t go out of date, you see; they just sit there waiting to come into effect. The provisions of a Will can however be very outdated.
Why should I make a Will?
It is always best to have a Will if you have something to leave, i.e. money, property, goods and chattels, particularly so if you have children. If you don’t have a Will, then the Law of Intestacy decides where your assets go and this follows a strict order. Unmarried partners and stepchildren are not provided for and this can mean expensive litigation to try and get what someone may feel they are entitled to. You can imagine the effect of litigation on a family.
Do a married couple both need to have a Will?
Yes, a husband and wife should make Wills together. You can name guardians in your Will. There are things you can do if you are married by using the spouse exemption for Inheritance Tax (IHT) to effectively defer any IHT until the second death. Further, if you own a house, you can protect your share of it for your child or children, which is useful in the event of the surviving spouse remarrying. If you aren’t married, then the same protection may have some disastrous IHT consequences and without a Will, your partner will be entitled to nothing at all.
What are the consequences if we don’t have a Will?
Without a Will, the Law of Intestacy applies. As stated above, without a Will, a partner has no automatic entitlement to anything you own, unless it is owned jointly, in which case it will pass by survivorship. However this could mean that IHT may be payable, as joint property forms part of your estate for taxation purposes. Further, your child/children will be able to have their entitlement at the tender age of 18. Would you want your 18 year old inheriting a six or seven figure sum?
We have some foreign assets. Would these be caught by a Will made in this country?
Almost certainly. There are several issues to consider including domicile, whether or not there is a foreign Will, are the foreign assets in the EU, is there tax payable in England, is the English Will recognised by the foreign jurisdiction…one thing for sure is that HM Revenue & Customs will want to know about them.
Who should we appoint as Executors of our Estate? Can they also be beneficiaries?
Executors can be anyone you trust; each other, adult children and other family members, good friends or professionals, such a solicitor. It there is any potential for conflict within the family, you would be well advised to appoint someone independent such as a professional firm. Although there will be a cost, it could be cheaper in the long run and can avoid litigation in many cases. And yes, an Executor can also be a beneficiary. It is the witness to the Will that cannot benefit.
Who would administer our Estate? Can we do this ourselves?
You can do it yourselves and it may be quite simple. However, by taking this route you very often don’t get the advice about what you could do. Many firms offer two types of service – one which involves just getting the Grant of Representation and one which deals with the whole estate – and the Executors should perhaps speak to more than one professional before deciding. A personal application also incurs a higher Court fee (£215 as opposed to £155), and usually takes longer to issue than a professional application.
What is the current Inheritance Tax threshold?
The current Nil Rate Band – the amount that can be passed on death free of tax – is £325,000 per person. It has been set until 2021 and, when tied in to the Residence Nil Band, will provide a married couple with a house and children up to a combined £1m free of IHT.