Robert Schon runs through what you need to consider
Wills are the last communication of love we leave, and as such they require thought, engagement and a serious attempt to do no harm. The process can also be described as a ‘stupid what if game’, because we have no idea of the circumstances of our death, so a well crafted will covers various scenarios.
Typically for a couple who are married or in a civil partnership their will at its simplest says:
- If I am the first to die – all goes to my spouse.
- If I am the second to die – all goes to my children equally who survive me.
- If any of my children have pre-deceased me leaving children – their share is to go equally to their surviving children.
- If none of the above survive to inherit – my estate is to pass to a UK charity.
- if you are UK domiciled and your surviving spouse is not, there are inheritance tax complexities;
- the above formulation assumes
- your children inherit outright their share – even if minors; and
- your surviving spouse inherits outright your assets and if s/he remarries/finds a new life partner; there is no guarantee your assets will pass in due course to your children/heirs.
When I started working locally and helping clients with their wills it dawned on me that there could be a problem with underage children inheriting as the income and capital from their inheritance can only be legally used for their education, maintenance and benefit. The money can’t be used, for example, to carry out a loft conversion at the home owned by their appointed guardians who now need a bigger home to accommodate the additions to their household. Nor can the funds be used to compensate a guardian who interrupts their career to help give stability to young, orphaned children.
My advice therefore is that parents take steps to reduce the risk that their children are, subconsciously or consciously, resented by the nominated guardians for any reason. I do not suggest that parents pay guardians for acting but that parents take steps so that if called upon, their appointed guardians know they have been thought of. I think this can be achieved by either:
- any death in service policy you or your spouse enjoys at work. The letter of wishes to your death in service trustees can say e.g., ‘if my spouse and I both die and we leave minor children please pay x% of my death in service benefit to the person(s) I have named in my will as guardians of my minor children; and/or
- you and your spouse buy joint life second death life cover in case you both die under (say) age 55 and write that policy in trust so the potential recipients include your appointed guardians.
Nothing is perfect but should the what if game mean guardians do become a reality, their knowing that you have thought through how their life may be impacted and taken steps to fund that disruption can do no harm.
Other issues when writing wills for families with minor children include:
- Who should be legally responsible for holding and managing your children’s inheritance pending their becoming 18 or older? For a number of reasons I am nervous of only appointing your nominated guardians to this role. My concerns include that to your children we hope the appointed guardians become stand-in parents. This may make it difficult for your children when they attain 18 (or older) to ask their guardians for a proper accounting of how they have applied their inheritance. That said, I think the guardians should have a seat at the table for their own dignity as it will be they who require access to funds held for your children to help your guardians meet the costs of ‘educating; maintaining and benefitting’ your children. Who to appoint as trustees of your children’s inheritance needs consideration.
- Who to appoint as the executors to your will? Their job is to:
- gather in your estate (everything you own);
- pay your debts (including any taxes due); and only then
- distribute your estate to your nominated heirs.
Where there is no surviving spouse to inherit, in a best case situation Inheritance Tax is likely to be due on an estate which exceeds £1m.
If you are a business owner (incorporated or not) one of your assets is your shareholding/partnership interest/sole proprietorship. If that business is regulated e.g. a dentist or solicitor, special thought is needed as to whether your professional regulator imposes conditions as to who can be appointed as your executor to control that asset. For example, must it be another e.g. dentist or solicitor? And can a non-dentist/solicitor can inherit that asset.
If you are a controlling shareholder in a company what do the articles of association say as to how your shares can be voted after your death and during the administration of your estate? It may be sensible to change the articles to say that the executors nominated in your will can vote your shares without having to wait for receipt of probate. It may also be that a new director (e.g. one of your executors) needs to be appointed promptly to help give stability to your staff and customers and so help preserve value for your family/heirs.
Also consider if a surviving spouse is the right person to take on this role or whether it should be another, meaning at least two executors should be appointed. It may be s/he is engaged in trying to give stability to your children and his/her new reality as a surviving spouse and may not have the ‘band-width’ to also ‘settle’ staff and customers.
- How you and your spouse own your home/real estate assets and bank accounts should be reviewed. If you own them as joint tenants they will pass outside of your will automatically to your co-owner. Although this is likely only to be relevant on death 1, if you do not want your surviving spouse to inherit outright and thus have freedom of testamentary disposition in respect of your assets, any joint tenancies should be broken; and
- If you own assets outside the UK, these should be identified and perhaps local law advice received.
Only we can act to leave our affairs tidily and a will is part of that process. To do the job well one has look at assets; liabilities; ‘responsibilities’ and the qualities (and frailties) of our loved ones and then do our reasonable best.
Robert Schon was a tax partner for 17 years in a City-based international law firm and has worked as a sole practitioner for 18 years in Swains Lane with Streathers Solicitor. He can be contacted at 020 7267 5010, firstname.lastname@example.org.