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14 October 2022

Probate Special Part 2: The Importance of having a Will and keeping it up to date

As part of our fortnightly Private Wealth Planning series Private Client partner Frederick Bjorn and associate Verity Sherwin look at the importance of ensuring you have an up to date Will.

Why should I have a Will?

Whether your affairs are simple or complex, local or international, putting a Will in place ensures that you are in control of your succession and tax planning and gives you and your family peace of mind.  A Will directs your assets to those you wish to benefit once you are gone and can help you manage specific family circumstances, such as second marriages or the desire to protect assets for future generations.

What happens if I die without a Will?

If you do not put a Will in place before you die, you will be ‘intestate’ and the intestacy rules can produce some surprising results. For instance, your whole estate would not pass to your spouse if you already have children, nor do the rules provide any benefit for stepchildren.  With an international estate there are also question marks over which intestacy rules will apply, which can lead to the need for expensive advice in administering the estate.

What does a Will do?

A Will allows you to:

  • choose trusted persons (your executors) to administer your estate and potentially any trusts  established under your Will;
  • appoint guardians for your minor children and to express funeral wishes; and
  • provide for your heirs in a way which is both tax efficient and in their best interests.

Are there tax benefits to having a Will?

Whilst there are no specific tax benefits to actually having a Will, having one can help you to make the most of available tax reliefs and exemptions in order to maximise the value passing to your chosen beneficiaries. Tax and estate planning is a core part of taking advice on your Will.

Which assets are covered by my Will?

Almost all of your assets will pass under your Will when you die, the primary exceptions being:

  • assets held jointly with someone else (which will pass outside of the Will by ‘survivorship’);
  • assets held in trust; and
  • the majority of pension and life insurance policies.

When should I put a Will in place?

Ideally, you should put a Will in place as soon as you are 18 and have assets to pass on.

It is also worth dusting off old Wills and considering any changes in your circumstances or wishes.  We would recommend reconsidering your Will and wishes at least every five years, but ideally more regularly to take account of changes in law/tax and significant life events such as a marriage (see below), divorce, having children or a property purchase.

Do I need a Will in each country in which I own assets?

Your Will can cover your worldwide estate or can be limited to a particular geographical area.  Depending on where you hold assets in the world and how you would like them to pass on your death, it can sometimes be helpful to have separate Wills for assets in particular jurisdictions.  These can be prepared to fit together seamlessly to govern your worldwide estate.

You need to be careful and take proper advice, as it can be surprisingly easy to revoke one Will by accident when executing another, particularly where Wills are executed in different jurisdictions.

Is my Will still valid on marriage?

No – getting married (or entering into a civil partnership) will automatically revoke your Will unless it was expressly drafted in anticipation of that marriage.  If you made a Will before marriage you must make sure this has not inadvertently been revoked so as to leave you intestate.

What happens to my Will on divorce?

Although getting divorced (or ending a civil partnership) will not revoke your Will, your former husband or wife will be treated as if he or she had died before you. However, divorce or ending a civil partnership is certainly a time at which it is important to revisit your Will, as it is likely to change the way you wish to leave your estate on death.

If you would like to discuss any of the issues raised, please do not hesitate to contact the author or your usual Payne Hicks Beach contact.


About the Author
Frederick Bjørn
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Verity Sherwin
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