What to consider when leaving a will

But these important documents can get neglected entirely, or are not updated to reflect the will writer’s actual wishes when they do die.

Tim Bennett, head of education at Killik & Co, explains the importance of a will: “Without a valid will, the distribution of any assets on death follows statutory rules, rather than the express wishes of the deceased. 

“Further, a will can specify key roles, such as who will act as executor and take responsibility for ensuring that instructions within the will are properly carried out, as well as indicating who will be legal guardian to any surviving children.”

Having an up-to-date will at time of death also makes the grieving process that bit easier for surviving family members.

A complicated pension and inheritance tax landscape, extended families, and the changing nature of partnerships mean the details of your will merit careful attention.Adam Hildred

As Helen O’Hagan, technical manager in Prudential’s technical team, notes: “Creating a will allows you to dictate what happens to your assets when you die, they will be divided up in accordance with your wishes. 

“It makes it easier for your family to deal with your estate at a stressful and emotional time.”

It is common now for families to be far more complicated, particularly if parents have married for a second or third time, and children have step-parents with their own children.

So working out who will receive which assets following a death in the family is important, as it may not be obvious, at first glance, to whom the deceased would like to leave their assets.

Adam Hildred, a financial planner at Brewin Dolphin, acknowledges: “A complicated pension and inheritance tax landscape, extended families, and the changing nature of partnerships mean the details of your will merit careful attention.”

What happens if your client has not left a will?

“When a person dies without leaving a valid will, their estate must be shared out in accordance with the ‘rules of intestacy’,” says Mr Hildred.

“This doesn’t necessarily mean children will be looked after as you may assume. In the absence of a valid will, the surviving spouse or registered civil partner will inherit all of the personal property and belongings and the first £250,000 of the value of the deceased’s estate. 

“The remainder of the estate will be split as follows: 50 per cent to the spouse or civil partner, 50 per cent split equally between any children. If there are no surviving children, the division of the estate will be carried out in accordance with a fixed order.”

Keeping on top of it

This may leave family members in a possibly desperate situation at an already overwhelming and upsetting time.

Joe Roxborough, a chartered financial planner at Ascot Lloyd, suggests it is important to regularly review a will to ensure it is in line with current wishes.

This is particularly true if the client has recently divorced, married for the first time or re-married, or had children.

As he puts it: “In the interests of dying tidily, leaving your estate to the whims of the intestacy rules or, worse yet, a beneficiary whom you would rather no longer benefited, is highly undesirable, and can result in a legal dispute for loved ones at the worst possible moment.”

While a will is a fairly straightforward legal document, there are some factors that can complicate it.

Mr Hildred lists a few people for whom making a will is especially important and explains why:

• Those not married or who are not in a registered civil partnership. The law doesn’t view partners who live together as having the same rights as husbands, wives and registered civil partners. So, if your client hasn’t made a will, their partner may not get anything, even if they’ve lived together for many years.
• Those with an extended family or if several people could make a claim on their estate. If people depend on the deceased financially, things could get complicated. Or if they have a large family there may be a minefield of permutations (including potential legal challenges) for them to think about.
• They are getting a divorce. If your client is in the process of getting a divorce, their spouse or registered civil partner will be entitled to a share of their estate in accordance with the rules of intestacy until the marriage or partnership has been dissolved.
• They are getting married. When you get married (or married again) all previous wills are revoked. So, if they have a will already, they should update it to ensure their wishes for their new partner and children are fulfilled.
• Those with children or dependents who can’t care for themselves. Not having a will could mean doubts about who will take care or provide for them if you die. A solicitor can also advise on how inheritance tax affects what they own.

Mr Bennett suggests a “good” will should outline how assets should be distributed and to whom.

“It may also make specific provision for the distribution of family heirlooms and amounts that may be set aside for certain valued recipients outside of the immediate family, such as carers and/or charities,” he points out.

Will writing can be quite a specialist area, so it may be the case that the adviser’s role in all this will be to put clients in contact with the right person, either elsewhere in the adviser firm, or at another firm entirely.

Mr Hildred explains: “You can make a will without using a solicitor but we recommend (and it is widely advised) that you do seek expert advice. 

“To ensure your will is valid you need to follow a number of legal formalities – a specialist can help you to avoid mistakes which could bring hardship and worry to your loved ones afterwards.”

Family affair

Scott Gallacher, a chartered financial planner at Rowley Turton, says advisers can be on hand to work through a will with their clients to make sure they understand who will receive what.

“It’s also important to understand the family’s view of fairness when writing wills, as different parts of the family will have different views,” he acknowledges. 

“I encourage clients to discuss anything other than the normal equal split between children with the beneficiaries in advance. This hopefully leaves the beneficiaries less surprised after the event and can avoid some of the angst later on.” 

As Femi Folorunso, a consultant at Mattioli Woods, points out: “A financial planner is familiar with clients’ financial affairs and therefore should help guide, not in respect of who gets what, or how much, but how the contents of the will may affect any financial planning strategies already in place, or planned for the future.”

Most clients will hope that by leaving a will in place that has been regularly updated, they will avoid potential problems arising between family members after their death. 

But Mr Gallacher cautions: “I advise all clients that the first thing that happens when someone dies is that everyone falls out. Obviously, this doesn’t always happen but I’ve seen it often enough to be very aware of it.”

Typically, though, a will should provide some comfort and financial security in the aftermath of a loved one dying.

eleanor.duncan@ft.com