When should you review your Will?

Your Will is the most important document you will ever put your name to. That means that you should ensure that you keep it up-to-date and treat it as a living document.

This article considers some of the main events that should trigger you to review your Will.

Under the general law, if you marry or enter into a civil partnership, your Will is automatically revoked unless it states otherwise.

As a result, many unmarried partners will have a clause in their Wills confirming that they are made in anticipation of marriage and so will not be revoked if they go on to marry each other. Even if your Wills have such a clause, it is still sensible to review your Wills after getting married to ensure that they are still fit for purpose. For starters, anything left to a spouse or civil partner is exempt from inheritance tax, but this is not the case for transfers between unmarried partners.

By contrast, divorce does not automatically revoke a Will in the same way that marriage does. Instead, the Will is still valid, but is treated as if the now ex-spouse had died before you. Such are the quirks of legislation that is almost 200 years old!

This means that unless the Will states otherwise, any appointment of them as Executor or Trustee will fail, as will any gift left to them. If, therefore, you are still on good terms with your ex-spouse and you still want them to benefit from your Estate, you may need to make a new Will stating that any mention of them is not to be affected by your divorce.

The birth of a new child is a prime time to review your Will, and here we discuss some points to bear in mind when you have children under 18.

Some Wills mention each child by name. In that case, the new child will not inherit anything and you would need to make a new Will to include them.

Of course, your children may well go on to have children of their own. There are many ways to include grandchildren in your Will, which could include:

• Leaving a legacy (i.e. a fixed sum of money) to each grandchild
• Leaving a fraction of the Estate between all your grandchildren
• If one of your children had died before you, leaving their share of your Estate to their children (i.e. your grandchildren) instead
• Creating a discretionary Trust to allow your executors to let your grandchildren have part of your Estate as and when they see fit

We would be very happy to discuss these options with you.

If you have remarried but still want to protect your children from previous marriages, you can include a Trust in your Will. This can ensure that your new spouse can benefit from your Estate while they are alive, but they do not own it outright. On their death it will go down to your children.

Many types of business asset benefit from Business Property Relief, which can create a substantial inheritance tax saving. Agricultural assets can similarly benefit from Agricultural Property Relief.

If you start a business, you should consider the implications for both inheritance tax and capital gains tax. This is very likely to involve updating your Will, to ensure that your business (a) is left to people who want to continue running it after your death and (b) is left in the most tax-efficient way. If you are not careful, you could end up wasting the relief, and in the worst case scenario this can actually end up creating more inheritance tax!

The same is true if you sell your business, as the reliefs will no longer be available. You should consider what the tax position will be after you sell, and take the opportunity to carry out some Estate planning. This could involve changing your Will to remove any clause dealing with your business or agricultural property, as well as making gifts during your lifetime in order to reduce the size of your estate.

You may want to ensure that all your children receive an equal amount from you, but if you have already been making lifetime gifts to them, some of them might have already received more than others from you.

You could therefore simply leave more to the others in your Will. However, this will be problematic if you subsequently make further gifts, and then all the amounts will be out of kilter. To prevent this, you can instead include a clause to take all lifetime gifts over a certain amount into account when calculating how much each of your children receives from your Will. This also means that you would not have to keep making new Wills each time you make a gift.

Since you made your last Will, you may have moved to another country but kept some assets in England and Wales. Some types of asset will pass under English succession law, even if you are no longer domiciled there. In that case, you should ensure that you still have an English Will that deals with the assets there, even if you also have a Will dealing with your foreign assets.

UK nationals who own property in many EU jurisdictions can make an English Will that covers worldwide assets and includes a choice for the foreign assets to pass under English succession law.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.