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Can't take it with you.

This article appeared in the April 2011 edition of Chic Lifestyle magazine.

Solicitor Katy Burgin talks about why everyone should make a Will and overcoming the barriers which stop people from doing so.

The BBC recently broadcast a series of programmes where business guru Sir Gerry Robinson examined the reasons why 70% of the UK population never make a Will. The programme offered a fascinating insight into the British psyche and delved into the reasons why some people are willing to take this risk with their family’s future inheritance.

In life, most people will do anything to protect their loved ones. So why should it be any different in death? Many people simply do not want to think about the prospect of death and therefore put off making any decisions related to it.

The problem facing the family of anyonemaking a will who does not make a Will is this. If you don’t make the decision about how your assets are passed on, who makes it? Unfortunately, in many cases, by not making your wishes clear in a Will beforehand, you may leave a situation where the family you leave behind end up in dispute with one another about who should get what. Most people would like to think that this would not happen with their family, but sadly in many cases it does.

If you die without leaving a Will you are said to have died intestate and your estate is distributed according to the laws of intestacy. The laws specify how assets are distributed to family members in a fixed order. If you have no family members then your assets will go to the crown.

The danger of dying intestate is that you will have no say in who gets what. Family members who you may not wish to could inherit your assets. Likewise, people who are not blood relatives but who you would like to leave assets to, such as unmarried partners, may not receive anything. The lack of protection that long term unmarried partners have under English law is one of the areas that commonly causes problems.

One of the main things the show illustrated was that the reason most people don’t make a Will is not cost. Having a Will written is usually a straight forward process which can be carried out by a specialist Will writing solicitor, and unless your affairs are particularly complex or of high value, the cost of a Will is minimal.

What it did illustrate was that many people put off making a Will because they do not want to confront the difficult issues that are raised by today’s modern, often fractured families. A good example is where a man who has children from a previous marriage has remarried. The problem is that he wants to leave assets to his children, often assets such as the family home that have been built up during the marriage to their mother, but at the same time he wants to protect his current spouse who lives in the home with him, protecting her in the event that he should die first. The perception among many people is that this is an insurmountable problem and that one party or the other has to lose out, and this leads to no action being taken.

In truth, a legal solution exists to most problems of this type. In the situation illustrated above the solution is called a ‘Life Interest Trust’ or ‘Life Interest Will’. With a standard Will, if you leave everything to your new partner your assets would become theirs. When they die those assets would then be passed to their beneficiaries, who may be their own children, thus depriving your children of any inheritance.

With a ‘Life interest Will’ it is possible to avoid this situation. You may wish to leave this to your children eventually, but still enable your current partner to live in it after you have died. It is possible to give your partner a life interest in the property, which means that after you die they can live in the property until they die (or remarry if you wish), at which point it passes to your beneficiaries. So the asset belongs to you beneficiaries (your children), but your current partner retains the benefit of it in their lifetime. In this way you can protect both your partner and eventual beneficiaries.

What the programme did highlight is that taking no action, not making a Will, is not an option.  Inaction is almost certain to result in your assets not going to those you would choose and possible even a family dispute. However complex your family or your financial affairs may be, a good Solicitor who specialises in Wills and Trusts should be able to find a suitable solution to carry out your wishes.

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