No Will? No, No!

The waiting game is a mug's game

If you do not have a will, when do you intend to make one? If you do have a will, when was the last time you read it to see if it still reflects your personal and financial situation - and your likes and dislikes?

Should you use a solicitor, or would a professional will-writer, a bank, a charity or other provider be better, perhaps cheaper? Maybe even do it yourself? What about financial advice?

Time, a not so subtle thief

Young people think that they have plenty of time to make a will and, let's be frank, most of them do. 'Most.' In fact, some young people do not have much time - Illness and accident take their toll of the young as well as old.

Older people with no will, or an outdated will, are also engaged in risky races against time.

How old is 'older?' American philanthropist Brooke Astor had all (certainly most) of her marbles well into her 90s. On the other hand, author Sir Terry Pratchett was not yet in his 50s when he got Alzheimer's, a disease that has been known to hit even people in their 20s.

Ironically, persistent good health can be an enemy of wise behaviour regarding wills. If the common cold and occasional flu have been the worst bad health you've ever experienced, you take good health for granted and may feel little urgency in writing or revising a will.

Then, bang, cancer or early-onset Alzheimer's or a car accident alters the situation dramatically. And what if the cancer is aggressive brain cancer? Mental capacity can diminish sharply, even vanish entirely, in a mere moment.

No will is a no-no

Dying without a will (intestate) is not a good idea. Your assets

• will be distributed according to a rigid formula, whether you like (or would have liked) it or not;
• will be distributed slower and probably with more hitches than if you had made a will;
• will probably be less than if you had made a will.

Even if you consulted financial planners during your lifetime, if you die intestate, much of the fruit of that planning will come to nothing. Financial planning is generally done in conjunction with a will.

If you die intestate, your husband/wife/children/civil partner do NOT automatically inherit everything.

Merely living together with someone else counts for very little regarding inheritance. "Common-law marriages" are not worth the paper they are not written on. (Civil partnerships are formally registered relationships.)

Gifts between spouses/civil partners are exempt from inheritance tax.

What about gifts between live-in lovers?

"Gifts that you give to your unmarried partner, or a partner that you're not in a registered civil partnership with, are not exempt," says HMRC.

In addition to ex-spouses, some people who depended on you during your lifetime may have a claim on your estate (even if you have not included them in your will, and even if they are the last people you want your assets to go to).

After your death your will can be revised ( this is no excuse for making a silly will).

A will can be made for someone who has died intestate (this is definitely not a reason to refrain from making a will).

A new will does not automatically revoke previous wills. The revocation has to be explicit, which is why wills usually begin with a phrase revoking all previous wills and codicils.

Revoke all previous wills even when you make your first will. It may seem silly to revoke something that doesn't exist, and never did, but if there is a suspicion that you might have made an earlier will, your executors or beneficiaries may waste time, energy and money hunting for it. Revoking all previous wills, including non-existent ones, is a good deterrent to wild-goose chases. However, if you have a foreign will that deals with your foreign assets, you may not want to revoke that will.

The wages of carelessness is chaos

The will needs to be valid because if it isn't, all or part of it can be ruled defective. An invalid will is one that does not exist, for all intents and purposes.

Clear, coherent and consistent wills can also prevent disputes and lawsuits. Even the simplest of legal challenges can be costly.

In the worst of the worst cases, legal challenges consume enormous legal fees that come out of the estate over a prolonged period of time. In his famous novel Bleak House, Charles Dickens depicts a case of disputed inheritance, Jarndyce v Jarndyce, that dragged on for decades. Dickens did not pull Jarndyce v Jarndyce out of thin air. The novelist based it on an actual case that financially drained the litigants and the estate as it enriched generations of solicitors. Even today, legal costs can be, in the words of a Court of Appeals judge, "ruinously expensive."

Disadvantages of not having a will

If you die intestate, your estate will be distributed according to the rules of intestacy rather than to your wishes. This will be the case even if you have written your wishes down on a wish-list or similar sheet of paper and signed it. Such documents carry no legal weight and are not equivalent to wills, which must be properly signed and witnessed, and coherently composed. Signing and witnessing a wish list does not increase its legal standing.

If you die intestate, an administrator will be appointed to look after your affairs. Although the administrator tends to be a family member, this person might not have been your first - or even last - choice for that task. The "wrong" administrator can increase tension among family members and friends.

The very lack of a will can create problems due to its absence - its real or apparent non-existence. You may never have made a will, but someone may claim that you did leave a will. This claim can lead to a search that could be costly as well as fruitless, and subject your heirs to delay and worry.

If you do not have a will, it is also likely that you have not organised your finances efficiently.

Summary - Advantages of a will

You get what you expressly asked for, from funeral arrangements to the distribution of your estate.

Your estate is distributed faster than if you die intestate, which involves delay due to the court having to appoint an administrator.

Your affairs are handled by your hand-picked representative, not someone appointed by a court official.

Summary - Advantages of a good (financially astute) will

All of the advantages of a will, plus

Your heirs pay less/no tax.

You can draw up a Living Will or Enduring Power or Attorney; more generally, your professional advisers can suggest options that you otherwise might not be aware of.

Know before you go

Probably the most important aspect of a will is getting it right legally, and for most people that will involve consulting a solicitor or other professional will-writer.

Even if you are capable of doing it yourself, however, the starting point is knowledge - the more you know about wills, the stronger your will will be regardless of who drafts it.

You also need to know how much you are worth, and this can be tricky. Many years of general economic growth and a property boom in particular raised many people above the threshold for inheritance tax. The economic collapse that started in 2008 undid many of those gains - but a lot of people still have wealth above the inheritance-tax threshold.

Review time

Major events (births, deaths, marriages, divorce), significant purchases, gifts, inheritances, winning or losing big on a horse or the lottery usually have a significant impact on wealth and on relationships with other people. After any event that changes your life or bank-balance, re-read your will.

Some changes can sneak up on us. For example, you leave a valuable painting to your favourite niece. Many years later, you fall on hard times or out of love with the painting and sell it, forgetting that you have bequeathed it. If you haven't altered your will, you will have given your niece a headache instead of a Hockney.

Review your will, too, in light of legal and regulatory changes. The inheritance tax nil rate band, for example, changes regularly. Same-sex couples were granted considerable benefits in the Civil Partnership Act of 2004, and the amounts automatically inherited by spouses and civil partners increased in early 2009 - the first such change since 1993. Failing to amend your will in light of these changes can be very costly to your estate.

Codicil Caution

Minor changes to a will can be done with a codicil, but don't be fooled into thinking that a codicil is a simple document that can be casually drafted. Like the will itself, it must be properly signed, dated and witnessed, and refer to the will it is amending. Even a codicil containing a simple change - naming a new beneficiary or executor, for example - needs to be properly signed and witnessed - and needs to be worded carefully.

Witness Care

Your doctor, solicitor, clergyman and next-door neighbour can all be excellent witnesses.

You can even enlist the services of a passer-by, although that is not recommended. In the event that a will is challenged, or queried by the Probate Service, the witnesses may be called on to testify.

Select witnesses who are reliable, trustworthy, conversant in English and available.

The witness, or their spouse or civil partner, must NOT be a beneficiary of your will.

Make it, review it, revise it: a summary

Why bother making a will? The short answer is that, for poor and rich alike, a will saves time, money and effort for all concerned.

For all concerned except the deceased, you may think. But even the dearly departed may take comfort in their lifetime from the knowledge that they have arranged their financial affairs in an organised and legal manner.

Here's the sad and stubborn truth about wills: many people who should have a will don't.

And of those prudent people who do have a will, many of them should review or revise it but don't.

Additionally, many individuals who intend to make or review their will leave it until it is too late.

Procrastination often results in family feuds and costly legal battles that could easily have been averted.

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You definitely need a will if you are rich, have young children or step-children (or illegitimate children, even if they are not part of your life. After you are gone, they may surface and stake a claim against your estate). A will is also a must if you own a business, a farm, or property or other assets in a foreign country (Spain, France, Italy and other EU countries are foreign). In general, the more complicated your life, whether commercially or romantically, the more you need a will.

If you want to give a gift to a specific person, a will ensures - at least, it increases the likelihood - they will receive it - although they may have to fight for it, as a guitar-maker to the Grateful Dead discovered.

In his long and detailed will, Grateful Dead singer Jerry Garcia (1942-1995) gave "all my guitars made by DOUGLAS ERWIN, to DOUGLAS ERWIN, or to his estate if he predeceases me". Irwin, to spell his name correctly, nevertheless had to sue to obtain the instruments.

The will did not guarantee that Irwin would get the guitars, but it bolstered his case.

If you own a house and do not want it to be sold to pay inheritance tax after you die, the best way to achieve that goal is with a professionally-drafted will. In England and Wales, thousand of houses every year have to be sold to pay inheritance tax.

If you own a house and want someone to continue living in it after you die but not own or inherit it, again, a professionally-drafted will addressing that specific issue is essential.

A will is similarly the way to go if you want to give gifts to one or more charities.

Does it pay to pay for a will?

If you are rich, you have no excuse for failing to take professional advice. You can afford it.

If you are poor - relatively poor or even downright broke - a will is still advisable, especially since basic wills are relatively inexpensive (and free if you use a scheme sponsored by a charity).

Suppose you have nothing of value except, say, an expensive fishing rod or pearl necklace, something that your son or daughter would inherit as a matter of course.

You should make a will because your fishing buddy Fred or your maid Marian might claim that you promised the item to them. Fred and Marian may be scheming liars or making an honest mistake. Either way, their claim could lead to a costly and ugly dispute. With a will, arguments are less likely to begin and more easily resolved if they do.

If having a will is a no-brainer when large sums are involved, and advisable when small sums are at stake, a will may also be wise even when money plays little or no role. Many financially struggling young couples have small children, a large mortgage, and no savings to speak of - but excellent reasons for making a will: to name guardians for their children should they die prematurely.

Obviously, the wealthier you are, the more money you will save thanks to expert tax and financial as well as legal advice.

NOTE If you own a second home or have other assets in one or more foreign countries, you may need a separate will for each country.
Each will should be written in conjunction with and refer to your other will(s), and each will should be made in light of the relevant tax and inheritance laws in each country.
  The price of NOT having a separate will can mean that your heirs are landed with huge tax bills, and may not get ownership of the property or other asset.

If you are not well off, your nearest and dearest - your beneficiaries - are probably also not well off. Your modest bequest might make a big difference to their lives. The sooner they receive it, the better - and a will speeds things up.

Everything points to the wisdom of making a will - without delay.