Guest post contributed by Peter Earle, Specialist Estate Planning Consultant with Legacy Legal
If the past 12 months have reminded us of anything, it is that we have no control over when we die or what our cause of death might be.
The majority of Covid-related deaths affected the most vulnerable: those over 65 and those with underlying health conditions.
However, the virus has also caused death in younger generations with unknown underlying health conditions – demonstrating the tragic unpredictability of the disease and highlighting our own mortality.
When a person dies in England and Wales without leaving a valid Will, the order in which their estate passes is governed by the rules of intestacy.
Unfortunately, these were set out in the Administration of Estates Act 1925, which is not particularly helpful in today’s society as unmarried partners do not inherit under the rules.
According to the Office of National Statistics, the number of cohabiting couple families continues to grow faster than married couples, increasing by 25.8 per cent from 2008 to 2018.
Similarly, the rules are very strict, and restrict who benefits under a category. For example, “children” include all biological children and adopted children, but not stepchildren or foster children.
Therefore, unless you have a Will in place, your stepchildren or foster children will not be automatically entitled to anything.
Despite a rise in the number of 35 to 44-year-olds who live in rented accommodation, a large proportion continue to own property in the UK. Some may also have assets or property outside of the UK.
Unless you own a property jointly with another person, making a Will ensures that your property, along with any other assets in your sole name, will pass onto your chosen recipients such as family, friends, or organisations such as charities.
If you have a child, or children, then making a Will could be one of the most important things you ever do.
A government report in January 2020 revealed that the number of children in care was at its highest for 10 years.
Without a Will, your children risk being placed into care if you and everyone else with ‘Parental Responsibility’ dies while they are under the age of 18. Parental Responsibility is not always automatic and is defined by statute.
Writing a Will allows you to appoint a guardian or guardians to look after your children when you die. Not only does this mean that you get to choose who cares for your children, but it also gives you the opportunity to discuss your wishes for them and provide guidance on their upbringing.
Marriage and divorce
According to the ONS, the average age for marriage in 2016 was 37 for men and 35 for women, which suggests many couples will be (or will have been) married by the time they are 40.
Given that people are marrying in their late 30s, they may well have already written a Will before they tied the knot. If so, their marriage will have automatically invalidated their existing Will unless the Will was prepared in anticipation of that marriage. Most people will therefore need to make a new Will after getting married.
With divorce rates increasing around the world and relationship experts warning that pandemic-induced break-ups are still increasing, it is little surprise that divorce is another topic of consideration.
While a Will remains valid if you get divorced after it was made, your ex-spouse will be treated as if they had died before you and will no longer act or benefit under your Will. It’s therefore advisable to review your Will and write a new one.
Things get a little more complicated if you separate but remain married, and it is important to discuss any existing Will or making a new Will in this situation.
In any event, Wills should be reviewed at least every five years to ensure they remain aligned with your wishes and continue to be valid.
So, what should every 40-year-old know about making a will?
Well, hopefully the above goes some way towards highlighting a few of the main points; what happens when there is no Will, how best to ensure assets pass in accordance with wishes, what happens to any minor children, and the impact of marriage and divorce.
Ensuring your Will is up to date, reflects your situation and is reviewed regularly is essential, as English Court statistics show that people are increasingly disagreeing over a loved one’s assets.
It can be a difficult subject to approach, but 40 is a great time to get estate planning affairs in order, write a Will or review your existing one.