Why is it important for co-habiting couples to have a properly drafted and constructed Will?

Making a Will is probably one of the most important things any of us could do in our lifetime. We all mean to, but often circumstances mean that we never actually get round to doing is. Does that sound familiar? Well, it should, as it’s estimated that two thirds of all UK residents make this same mistake. The reason for this inaction is that we mistakenly believe that the law will ensure that, should anything happen to us, then all our property and possessions will go to our loved ones. Sadly this isn’t the case. The failure to make a Will can have consequences for our families, which are the last thing they will want to have to deal with on top of their loss. This is particularly true if you’re not married to your partner, or have not formed a civil partnership. If you die before making a will your partner won’t automatically inherit anything from you. What the current law dictates is that everything should in fact go to your nearest blood relative, even if that wasn’t your wish. If you don’t make a Will, in many cases the Crown is actually more likely to inherit from you than your partner.

So why is it so important to make a Will?

There is a general presumption that only rich people need to make a Will. Well, that’s mistaken. You don’t have to have lots of money or a large family to fight over the estate to feel you need to make a Will. Making a valid Will is important for everyone. Wills allow you to:

• Choose who you would like to administer your estate after you die. Without a Will it will automatically be your nearest relative.
• Make arrangements for children under 18 and appoint guardians to look after them and anyone else with parental responsibility if you die. This will also ensure that they are looked after financially.
• State what you want to happen at your funeral, and who you would like to be involved.
• Leave some type of tenancy to people in your Will, to protect loved ones from being forced to find a new home after your death.
• Instruct your closest relatives whether you may be entitled to some form of compensation after death, for example a death-in-service payment, or an insurance payout.

If you haven’t made a Will what sort of problems might arise?

If you’re separated but still ‘technically’ married

Even if you’re separated from your former husband, wife or civil partner, if you haven’t made a Will stating your express wishes, they could still conceivably inherit the bulk of your estate. They could stand to gain your personal possessions and the first £250,000 of your estate plus a life interest in half of anything that is left. This is the case even though you may have wanted this to go to a current partner or your children. These children will only get something if the estate is worth over £250,000. An unmarried partner would get nothing. If you don’t have children then your ex partner would get the first £450,000 and half of anything that’s left.

If you have children and a partner and are not married

If you have children and are not married, or are divorced, the whole estate will be divided between your children. This may seem fair and logical in the circumstances, but can lead to future problems between you children and your partner. They would own any savings and personal belongings, and possibly even your home. Your partner would have no right to anything. It may well be that you actually wanted your children to inherit everything, but a solicitor will be able to advise on better ways of achieving this end. It’s possible to set up a trust so that your partner has some income or the right to stay in the house for the rest of his or her life.

You have no legal relationship to your partner’s children

All biological and adopted children are treated equally by the law, so they all stand to inherit from you whether they come from a previous or current relationship. Your partner’s children are not included in this. If you want them to benefit in some way from the estate, then you need to include them in your Will.

If you haven’t appointed a guardian

If you have children under the age of 18 and are the sole person with parental responsibility, then you need to appoint a guardian in your Will. If you fail to make a Will and don’t appoint a guardian, then it will be impossible for those remaining to know what your exact wishes for the children were. Making a Will means that your children will be raised by someone of your choosing.