Briefing - 05 February 2017

Making a Will: Six questions to consider

Charlotte Elliott, Wills & Probate Lawyer, explores six key questions that Jersey residents with international assets should consider when making a Will.


Charlotte Elliott

Associate Director, Wills & Probate

1. What are your assets?

This sounds like a simple question but it’s often overlooked. The hard earned assets you have acquired during your life, or the inherited assets which are now held in your own name or joint names, should be accounted for in your Will. These assets may be as diverse as:

  • Shares in a private offshore company
  • Stocks and shares on world stock markets
  • A flat, house or land
  • Bank accounts
  • Race horse
  • Holdings in the UK National Savings Bank e.g. Income Bonds, Growth Bonds, Savings Certificates

2. Where are your assets?

Many of us think our assets are all in one place i.e. in my local bank, with my asset manager or maybe you think “I just don’t have to worry about jurisdictions” - however this may be something that you need to look more carefully at. Taking the UK as an example, the current legislation states that regardless of where you live in the world, if you have any assets in your sole name in the UK you may be liable to IHT chargeable at 40% on your death:

So for example, if you live in Jersey and you own stocks and shares in UK companies held through your asset manager e.g. shares in BT, ITV, Marks & Spencer - you have assets in the UK. If you have National Savings products (which are available to buy at the post office) - then you have assets in the UK.

By contrast, if you own shares in a private investment company registered in say Jersey, Guernsey or the BVI that holds a substantial stock market portfolio then depending on which jurisdiction the company is registered, you have assets in Jersey, Guernsey or the BVI.

It is appreciated that every individual will have unique circumstances and we always encourage clients to seek legal advice.

3. Do you have a Will and have you updated it?

If you do, well done! You are part of a minority of the population. The last survey undertaken stated that only a third of people in the UK have a Will.

However, when did you last review your Will to take in to account any changes in your circumstances, e.g. a change in the location of your assets, changes in the extent of family and whether your executor is still living or the appropriate person to act? Your Will needs to be reviewed regularly to keep up with any changes in your personal circumstances. If your Executor is a similar age to you, there is the chance that they may well die before you – have you considered appointing a fall back executor?

4. What happens if you don’t have a Will?

If you answered no, you are in the majority of the population as over two thirds of people die without ever making a Will to deal with their assets. We often hear people say: “I’m too busy to make a Will right now,” “once I am gone it isn’t my problem?” or “I don’t want to have to pay a lawyer!” But have you thought about how not having a Will affects your wife or your husband, partner, children or grandchildren, siblings and parents?

If you wish to avoid succession and probate complications for your loved ones on your death and you have any assets, you should consider putting a Will in place.

Without a Will to deal with your assets your Estate will be considered “intestate”. Intestacy often causes additional delay in the release of assets and additional cost.

5. Where do you live?

The principles which set out entitlement to your personal assets is broadly speaking the laws of the country in which you are domiciled. Without a Will to set out your wishes the Probate Registry will need certainty over who is entitled to deal with your assets and who is entitled to benefit from your UK Estate. A Court Order and/or Affidavit of Law from the country of the deceased’s domicile is needed to identify this. This can be costly and time consuming to obtain.

If you make a Will dealing with your UK assets you can nominate Executors and decide who is to benefit from your Estate. Therefore the uncertainty, delay and cost are all avoided. With a Will, all your executors need to do is make a simple probate application, pay your debts and liabilities and distribute the assets. You can also plan the direction of your estate to take account of tax consequences.

6. Why delay?

We all pay to protect our car or our house. Paying for a Will to protect our family is a simple extension of that principle. Your Will ensures that your possessions, property and money are dealt with in the most convenient, cost effective and easiest way after your death. For a few hundred pounds you could ease the distress for your family. Now is the time to “Think Beyond Tomorrow” and plan for your family’s future.

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