With all the will in the world

10 April 2018 | Applicable law: England and Wales

Nothing is more important than ensuring your family's future after you have gone. It is widely known that the best way of doing this is to write a will to guarantee that your wishes are legally protected. Unfortunately, nearly two thirds of adults in the UK have not made one.

This situation is complicated by the fact that for foreigners living in the UK any will planning they may have done in their country of origin is not guaranteed to be effective in their present circumstances: it may not offer protection over all of their assets; it may give different results to what they originally intended; or it may have adverse and, in some circumstances, severe tax consequences.

FOCUS, London's largest organisation providing advice to expats, organised a survey of its members this year and found that the average FOCUS member is married, frequently with a spouse who shares their nationality, and has children. They hold assets in the UK and in their country of origin and have lived in the UK for up to five years, but expect that they will move again in the future.

Their recent survey results largely echo the findings of a similar survey conducted in 2014. Seventy percent of respondents have no will (65% in 2014), indicating a worrying growth in the lack of will planning since 2014. No one had made both a UK will and a will in their home country and only a small minority (15%) had either a UK or non-UK will.

What are the practical complications that could arise for our average FOCUS member if they were to die without appropriate estate and will planning in place? For individuals coming from continental Europe, succession planning is shaped by the rules of forced heirship, which apply in many EU countries, and can lead people to think that having a will is an unnecessary complication, as it will not make a big impact on the eventual division of their estate.

Not many realise, however, that the forced heirship rules could have a much wider scope, as they could impact people with non-continental nationalities with assets on the continent, or indeed those who decide to move there at some point in their lives. Conversely, it is a common misconception that these rules would simply stop applying just because an EU national moved to a 'non-forced heirship' country, like the UK or some of the US. This is the case, despite, or in some cases because of, the entry into force of the EU Succession Regulation in 2015.

In the UK, estates without a will in place are governed by the rules of intestacy, meaning that the assets in the estate will be passed to certain close relatives in a predetermined way, which is often not what the deceased may have wanted or indeed how he or she would have chosen to plan their affairs had they obtained appropriate estate planning and inheritance tax advice.

It is therefore highly recommended that you take the time to make an all-inclusive overview of your assets, residency and family circumstances, and plan for the future. Not having a will at all is a problem, but the same can be said of having wills in different countries which do not coordinate with each other, thus risking accidental revocations and, ultimately, causing a difficult muddle to untangle. Additionally, in an international context the overlap of different, and often incompatible tax rules may result in an expensive tax bill for the surviving family members, at the most difficult time, which could, to a large extent be mitigated by some forward planning.

Knowledge is essential when making plans for the future, and understanding the risks of not having a valid will structure in place is an important first step towards protecting your estate.

This insight was adapted from an article which appeared in the March 2018 edition of FOCUS Magazine.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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