• What do I need a Will for? It is just more money for lawyers isn’t it?
  • You do not need a Will do you? Of course, the law is there to sort things out fairly upon your death. Hardly anyone needs a Will, do they?
  • I need not bother about a Will until I am old. It is a very negative thing to do and I am only middle aged.
  • I am getting divorced and I want to make sure that my wife (soon to be ex wife) does not receive anything in the event of my death. What should I do?
  • My partner and I have been together for nearly 3 decades now and have children. Presumably, being in a common law marriage, means that we are treated the same as married couples.
  • I do not understand the difference between Executors and Trustees.
  • Guardians – we have allocated godparents, isn’t that enough?
  • We have been through a divorce and I fear that there will be a huge dispute about who looks after the children in the event of the death of one of us.
  • Weren’t the tax rules changed a few years ago? I thought that inheritance tax had largely been abolished.
  • It is quite enough to cope with divorce proceedings – shouldn’t I simply put the Will off for a few more years?
  • Can you explain the circumstances in which having a Will is essential?

General Principles

When thinking about family arrangements, it is essential to consider what the situation would be after the death of one or more parent. Making a Will can give you peace of mind of knowing that you have made arrangements for any dependents, including your spouse and children, after your death.

What are Some of the Advantages of Making a Will?

Beneficiaries - You can decide precisely who inherits your estate upon your death. If you do not leave a Will, then your property will be left to your closest relatives according to the intestacy rules. If you are married or in a civil partnership and you are in the process of getting divorced or applying for dissolution, this generally means that your husband/wife/civil partner would be left with a large part of your estate. Conversely, if you are cohabiting, then your partner will not be left your estate under the intestacy rules.

Guardians for Children Under the Age of Eighteen Years - If you have children, you can appoint guardians for them in your Will. These are people who will take care of your children should both parents die before the children reach the age of eighteen years.

It is best not to assume that if something happens to you, your closest relatives will be responsible for the care of your children. Without a Will, the choice of a guardian could even be decided by the court and, of course, the court does not know your children and has no way of knowing your wishes.

A guardian is someone who is not the parent of the child but who has the same parental responsibility. On the death of either parent it must be established whether the survivor is one who has parental responsibility for the child. If a child's parents are married to one another at the time of the birth, each has parental responsibility. If they are not married, then only the mother automatically has parental rights. If there is a surviving parent with parental responsibility then the appointment of a guardian will only take effect on the death of that surviving parent.

Godparents do not become guardians upon your death. Their role has no legal standing.

Naming a guardian in your Will is the best way to ensure that the care of your children passes to the guardian you choose and gives you peace of mind, knowing that if anything happens to you, your children will be safe. For that reason alone, if you have children under the age of eighteen years, making a Will is essential.

Executors – You are able to choose your Executors. They will be the people responsible for administering your estate in accordance with your wishes. In the absence of a Will, then Executors will be appointed according to the intestacy rules and this will usually mean your husband/wife/civil partner will be the person so appointed.

Trustees - If you leave your estate to your children on reaching a certain age, it will be held on trust for them and looked after by trustees who you appoint in your Will. The trustees will be able to do all that is necessary to financially support the guardian in bringing up the children, using the powers of maintenance or advancement given by the Will. It is sensible for your trustees to be different people from the guardians. It is not necessary to make specific financial provision for your guardians or make them beneficiaries in your Will.

Tax Planning - Your estate could be affected by Inheritance Tax. So by making a Will and receiving appropriate experienced advice, it may be possible to incorporate some tax saving devices.

When Should You Make a Will

If you are in the process of going through a divorce or dissolution it is advisable to have a Will or update your Will, to protect your children and other members of your family or your new partner if you are cohabiting.

It is important that everybody makes a Will because if they do not there may be no way of ensuring that the people they want to benefit from their estate do so upon their death. If you die without leaving a Will or any living family member, your estate could even go to the Crown.

What Happens if I Do Not Have a Will

If you married to your partner or in a Civil Partnership and die without making a Will, your spouse/Civil Partner and children will automatically benefit from your estate although not in the terms that you may have intended.

If you are cohabiting and you die without a Will, your partner does not have an automatic entitlement to anything from your estate, no matter how long you have lived together.

If you have been living together for at least two years, your partner may be able to make a claim against your estate under the Inheritance (Provision for Family and Dependents) Act 1975. The application has to be made within six months of the grant of probate or letters of administration i.e. at a time when your partner is likely to be grieving and trying to come to terms with his/her loss. The legal claim against your estate may well be against your children or other members of your family who have benefited and will invariably have financial and emotional consequences. If you are in any of the following situations, you need to make a Will.

  • You are living with your partner but do not have any children. You may marry or enter into a Civil Partnership in the future, but until then, neither of you will be automatically entitled to inherit on the death of the other.
  • You are in a relationship but are still married to, or in a Civil Partnership with, another person (from whom you are estranged).
  • You are in a relationship and may have children from a previous marriage which ended in divorce.
  • You are an older person and have built a good relationship with your stepchildren, who you would like to benefit from their estate.

A Will is important whether you are married or in a Civil Partnership. At present and until there are is any change in the law, it is essential if you are cohabiting, as it is the only way that you can make proper provision for your partner and family in the event of your death.


John Turner, the Principal of Blackdown Family Law Solicitors has been advising upon and drafting Wills since he qualified as a solicitor in 1994. He will advise you upon the most effective way of proceeding, whilst taking into account all of the circumstances of your case. Through extensive experience he will work with you in order to achieve the best solution to your requirements.

Areas of Family Law Work
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