Nobody likes thinking about it but it is important to draft a will. Family dynamics are very different now and less straightforward than in the past. Many factors have completely altered the way families are formed. The impact of the various forms of assisted fertility to the rights, or lack of them, for the surviving partner in unmarried cohabiting couples, can be felt forcefully when a person dies intestate. If you do not make a will the laws of succession in England and Wales will apply; this can mean, in certain circumstances, a distant unknown (or worse still disliked) or estranged relative will inherit your estate rather than, for example, a much-loved child of your co-habiting partner whom you have brought up and supported and considered as your own. Many people now have properties in Europe, which if your overseas assets are not enshrined in a will, are also subject to the laws of succession in the respective country, which may be different to the English laws and allocate your estate in a way you may not like. It is best to take legal advice to protect your overseas assets.
Overseas adoption or surrogacy can either strengthen or weaken the situation depending on which country the arrangement took place. If the child’s status is not on a sound legal basis there could be problems for the remaining partner and for the child in the absence of a will. The complex question of surrogacy should always be approached with caution, particularly as a surrogate mother is regarded as the legal mother in the UK even if there is no genetic connection between her and the baby and in the UK the honour system is relied on as surrogacy contracts are unenforceable in England and Wales.
Even greater attention must be delivered to a will involving an estate which includes a business, particularly if the business is to continue running. There may be commercial premises involved or the inheritance may include assets and plant essential to the running of the business. Steps should be taken to prevent asset stripping by the benefactor.
There are a considerable number of situations that can be avoided with a sound well-drafted will; for example, you may be happy to ensure that your partner, to whom you are not married and who has no financial interest in your property, does not have to leave the home you share upon your death. However, you may not be so happy for his or her challenging family to actually inherit your family home when your partner eventually dies. Another problem that can cause a disaster is that so many people do not actually get round to divorcing, even in the case of an acrimonious parting, particularly if the couple have two separate nationalities and one person returns to their country of origin and disappears. The last thing that would be welcome is the sudden re-entry of an insufferable spouse from long ago snatching part of your estate from under the noses of your benefactors, these and other issues listed below may apply to you.
- Protecting your partner’s position if you are unmarried.
- What if you did not divorce your spouse and just moved in with your new partner?
- How can you minimise your benefactor’s tax liability?
- What happens if you lose capacity?
- What can be done to stop your relatives challenging the will?
- How to protect a benefactor who is under the age of majority.
- How to make certain your executors will carry out your express wishes.
- How can you protect your adopted children if you only have an informal agreement with the birth mother?
- How to ensure that the inheritance goes only to the benefactor named and not to the benefactor’s family upon their death.
- If you make a will what happens if a benefactor pre-deceases you?
The short answer to all the questions above is to put all the issues that apply to you on a very sound legal footing. You will need a rock solid will to make sure no one can dispute your wishes when you are not here to put them right. Children must be legally yours and crystal clear instructions about guardianship whilst they are under the age of majority.
The experienced lawyers in Giambrone have extensive expertise in protecting the wishes enshrined by an individual in a will, for both their UK assets and their European assets, as well as advising on managing the administration and probate.
Leave a Bequest, not a Battlefield.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.