WILLS. WHY ARE THEY IMPORTANT FOR YOU AND YOUR BUSINESS , AND WHEN SHOULD YOU MAKE ONE?
By ROB MARTINS, CHEESMANS ACCOUNTANTS
Nobody likes to think about, or plan for, their death. But, if you own all or part of a business – then it is essential that you make a will. Without a will your shares could be sold, the business could be broken up or it could fall apart without the correct day-to-day running in place.
If you die without a will all your property (both business and non-business assets) will be distributed under the laws of intestacy – and you and your loved ones will have no say as to where your assets end up.
Generally, anyone over 18 and of sound mind, can make a will but there are certain factors you must follow in order to make it a legal document;
1) The will must be signed by the person making it (the testator), and two witnesses
2) The witnesses should not be beneficiaries under the will, nor married to, or be civil partners of the beneficiaries
3) A will must also appoint an executor, who will carry out the instructions written in the will.
A will should include instructions in relation to your money – including pensions, insurance policies and shareholdings – property and personal possessions together with details of your executor(s) and beneficiaries.
If you do not make a valid will, then anything you own will be distributed in accordance with the intestacy rules. Via this method, the first person entitled to receive your property is your surviving spouse/civil partner if you have one.
However, they may not inherit the whole of your estate – that depends on the size of your estate and which blood relatives survive you. Any assets held (in joint names, as joint tenants or tenants in common) will automatically be passed directly to the other joint owner(s) upon your death and therefore does not form part of your estate.
If the following circumstances apply to you, then the Intestacy rules will be something you want to avoid.
- You are living together but are not legally married or in a civil partnership but wish your partner to inherit some or all of your estate
- You are legally married or in a civil partnership and have children and you wish your spouse/civil partner to inherit all of your estate. (Please note a claim could be made against your estate in this instance)
- You have no living relatives and wish to leave your estate to your friends or to a charity (the Crown may take your estate if you die leaving no will and no surviving relatives)
- You are legally married or in a civil partnership and you don’t wish your spouse/civil partner to inherit anything
- You are legally married or in a civil partnership but have no children.
- You are legally married or are in a civil partnership and have children from a previous relationship and you wish to ensure that your children receive something from your estate.
- You have dependant relatives e.g. children under 18, elderly relatives or relatives with a disability who have special needs and you want to make sure that they are looked after and provided for. (If you make a will you can appoint guardians to look after your children and set up trusts in your will to provide for dependants).
- Your estate is large and may be liable for Inheritance Tax and you may, therefore, wish to make arrangements for tax planning.
In other words, if you die without a will and do not leave behind a spouse or children, then your estate will be passed to your parents, then brothers and sisters (or their children if deceased) then grandparents, then aunts and uncles of the whole blood, then aunts and uncles of half-blood, then the Crown.
If you leave behind a spouse or civil partner without children, then your spouse will receive the first £450,000 of your estate. If there is more left over, your spouse will receive half of the remainder, and your parents will receive the other half. If you have no surviving parents, then your brothers or sisters will receive the half in equal amounts and so on.
If you leave behind a spouse/civil partner and children, then your spouse will receive the first £250,000 and half of whatever is left over, with the children receiving the other half in equal amounts.
There are several ways to make a will, including writing one yourself on a plain piece of paper, but the most recommended way is to seek professional help. The professionals can advise on Inheritance Tax and Trusts, and ensure the will is valid. They may also store your original will at no additional cost.
There are only two ways to change a will and they are:
- Making a new will thereby revoking the old one; or
- Making a codicil
A codicil is a supplement to a will and outlines changes you wish to make. The codicil is executed and signed in the same way as a will. If, however, you have complicated changes to make, then writing a new will altogether is advised.
It is particularly advisable to seek professional help in writing a will if:
- You share a property with someone who is not your spouse/civil partner
- You wish to make provisions for a dependant
- You have several family members who might seek a claim on the will such as an ex-spouse or children from a previous relationship
- You permanent home is not in the UK
- You have overseas property
- There is a business involved
If you own part of, or the whole of, a business, then making a will is essential. Suppose you are a majority shareholder but die unexpectedly without a will. Your shares, and therefore, majority ownership of the business would be subject to the intestacy rules (as above). If you are not on speaking terms with the inheritors or they do not understand the affairs of the business, a number of things could wrong. The shares could be sold, the business could be broken up or it could fall apart without the correct day-to-day running in place. If shares are split between your spouse and children, this could make things very difficult as the children might not be old enough to make business decisions. A will, therefore, can set out who you want your business (or shares) to go to. This can ensure the smooth running of the business after your death.
When to make a will
It is common to think that a will is not needed if you’re young or don’t have much of an estate, however, the sooner you make one, the better. If you are married or have children or look after dependents, then it is important to make sure they are properly taken care of when you are no longer around. If you have no spouse or dependents and don’t make a will, then your assets will be passed directly to your parent(s) or siblings. You may, however, wish that some of your possessions go to friends instead, for example. If you wish to leave anything to charity, this will need to be stipulated in a will. You can also make funeral arrangements and stipulate what you want to happen to your body. In other words, a will can cover almost everything so if you want to have any say in what happens to your possessions or yourself after death, then a will is one of the most important documents you can ever have.
Rob Martins is from Cheesmans Accountants. As Company Secretary Senior, he also deals specifically with wills, probate and Lasting Power of Attorney, plus all legal and compliance requirements of Limited Liability Partnerships. See: http://www.cheesman.co.uk/