By Marianne Shaw, partner at Le Gallais and Luce
TO will or not to will, that really is the question. The importance of making a will cannot be overstated.
At Le Gallais and Luce, we believe in the process of dying with ‘good grief’. Death is something we all have in common and is ultimately inevitable.
Common reasons for not making a will include ‘I don’t want to think about it’, ‘It upsets me’, ‘I don’t have anything to leave’ and ‘I still have plenty of time’ but there are so many reasons why it is important to make a will.
What is a will?
A will is a legal document, which sets out how you wish your estate to be dealt with at the time of your death. You decide who inherits your estate and in what proportions, giving you and your family peace of mind.
In the event that you die having not made a will, the law will determine who inherits your estate. This is known as dying intestate. This means that your estate may be inherited by people who you would not wish to benefit. Dying intestate can cause distress and upset for your loved ones.
Couples who live together without getting married, known as ‘common law spouses’, are offered no protection under the law and the law does not permit unmarried couples to inherit from each other. It is therefore of great importance that unmarried couples give consideration to making a will.
Types of will
To prevent you from dying intestate, it is common in Jersey to make two wills, one dealing with your immovable property (eg land and buildings on land and leases in excess of nine years) and one to deal with your movable property (eg everything else such as cash, investments and personal effects).
The primary reason for making two wills is because of their different signing requirements and because they need to be registered in different places after your death.
Dying without making a will
Provided that you are domiciled in Jersey (ie Jersey is your permanent home) and you die intestate with a surviving spouse/civil partner and children, the surviving spouse/civil partner is entitled to the household effects (as defined by law), the first £30,000 cash and half of the remainder. The children take the other half, split equally between them.
In the event that you die leaving a spouse/civil partner only, then your estate will be inherited in its entirety by your surviving spouse/civil partner.
In the event that you die leaving children, only they will inherit the entirety of your movable estate in equal shares.
If you die, leaving neither a surviving spouse/civil partner nor any children, then your estate will pass to your heirs at law.
In the event that you die leaving both a spouse/civil partner and children, your spouse/civil partner will be entitled to lifetime enjoyment of the matrimonial home together with an equal share in the ownership of the property with any children.
Where you die leaving a spouse/civil partner and no children, your estate will pass to your surviving spouse/civil partner in its entirety.
In the event that you die leaving no surviving spouse/civil partner, your children will inherit your property in equal shares.
In the further event that you die, leaving neither a spouse/civil partner nor any children, then your estate will pass to your heirs at law.
Strictly speaking, it is incorrect to say that Jersey has ‘forced heirship’ provisions. You are free to will your movable estate to whoever you choose. However, ‘legitime’ rights, when claimed within the specified time period, cannot be removed even if you have made a will which ignores them.
Many married couples make a will leaving their movable estate to each other and then to their children only if the other dies first. In practice, such a will is usually only the subject of a legitime claim if a degree of animosity exists within the family – for example, if there has been a subsequent marriage.
Legitime does not operate against immovable estate.
You are free to leave your immovable estate to whoever you choose. However, in the event that you are married or have a civil partner at the time of your death, your spouse/civil partner would be entitled to lifetime enjoyment over a third of the immovable estate of their deceased spouse/civil partner, regardless of the wording in the will. This is known as a right of dower.
In reality, dower can be largely ignored as most couples own their immovable property jointly with their spouse/civil partner in which case the property automatically passes to the survivor on the death of the first spouse/civil partner.
To will or not to will?
It is, therefore, for each of us to decide whether to make a will. As set out above, the benefits to making a will far outweigh the potential negatives.
There are no pre-printed wills forms which are suitable for use in Jersey, and therefore in order to make sure that your will is valid, professional advice should always be sought.
There will never be a perfect time to make your will and many of us will have a reason why making a will can be put off until another day, but making a will is good preparation for the future. It allows us to have ‘good grief’ by giving us peace of mind and certainty when the inevitable day comes.
For more information and advice in relation to making a will please contact our wills and probate team by calling 760760 or emailing firstname.lastname@example.org.