Wills Myth Busting

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I’m passionate about trying to get people to understand that will’s aren’t just about old people. I think the young really underestimate the importance of having a will – because we just can’t predict the future. So whilst we all hope to live a very long and healthy life, we’ve all seen examples in our lives of young people being taken from this world earlier than expected.

It’s better not to wait. Creating a Will while you’re young is just one of the many parts of “adulting”. It ensures your assets and your family are protected. I’ve sadly seen many examples over the last few years of young people who have thought nothing would happen to them, didn’t make any plans and ultimately their loved ones were left vulnerable.

You don’t need to be wealthy to make a Will. Whilst people often say they don’t have anything to give, you probably have a lot more than you realise. Your savings, even small amounts; your home; the contents of your house; your car.

These are all things that could be passed on in the event of your death. Often the people that have few assets will have a lot more value in terms of sentiment than potentially a million pound investment. Surely you’d want to make sure that what you do have goes to the right people?

Plus, Wills aren’t just about money. Do you have any children? What about your pets? Who would you like to look after them if you’re not around? Do you have any specific funeral wishes? All of these sorts of things can also be included in a Will.

Unfortunately, it’s not that simple. If you die without a Will, your family can’t distribute your estate however they wish. In fact, they may not even be able to get involved in administering the estate.

Without a Will, your assets pass according to what’s called the Rules of Intestacy, so essentially the law decides. The only way to guarantee that your estate is dealt with by the people you choose and that your assets pass to the right ones is to have a Will.

Yes, this is another common assumption. Many parents believe that their relatives, siblings, or parents would automatically take care of their children if something were to happen to them.

The reality is, if you don’t formally appoint a Guardian and there is no surviving parent, then ultimately the courts decide who to appoint as Guardian. They might not choose the person you would want. And whilst you may have had conversations with your family, you have to formalise it, otherwise the court will make that decision on behalf of your children. By preparing a Will you can appoint Guardians to ensure that your children are protected.

This is a dangerous assumption and one of the biggest misconceptions. If you are married or in a civil partnership with no children, then if you die, all of your assets will pass to your spouse or civil partner.

If, however, you are married or in a civil partnership and you do have children, all of the personal property and belongings of the person who has died and the first £270,000 of the estate will pass to the surviving spouse. The other half of the remaining estate is shared equally among any children.So your spouse doesn’t automatically get everything.

More importantly, if you and your partner are not married or in a civil partnership, then the rules of intestacy are going to sting you. These rules don’t recognise what we call common law relationships, so unmarried partners essentially receive nothing.

When you marry or enter a civil partnership, any existing Will is automatically cancelled – it is no longer valid. So, if you don’t make a new one and you die, then the rules of intestacy will apply to your estate.

There is an exception to this rule. You can insert in your Will something called a contemplation of marriage clause. However, this only applies if the person making the Will is expecting to get married or form a civil partnership with a named person at the time the Will is executed, and within a reasonable timeframe.

So if you’re engaged to be married in 18 months time, then a clause can be inserted in your Will that prevents it being revoked when you got married. You can’t just put it in your Will if you simply hope to marry someone someday in the future.

You shouldn’t alter the original Will document once it’s been signed and witnessed. Any additions or alterations made after the Will has been executed will invalidate the document.

The only way you can change or update a Will is by making an official alteration called a codicil. Or you can make a new Will and revoke the old one. Either way, you need to sign a new document and have it witnessed to ensure it’s valid. As long as you retain the capacity to make a Will, you’re totally free to revoke it or write a new Will at any point.

Where you do want to make changes to a Will, it is important to seek professional advice to ensure whether there are any implications. The wording has to be correct, otherwise it could be misinterpreted or be invalid.

This is a tricky one. In English law, we have something called testamentary freedom. It’s an important principle of law that means that people have the freedom to leave their estate to whomever they wish in their Will.

Some countries have something called forced heirship, which means that you have to leave certain proportions of your estate to certain people. Whilst we do have testamentary freedom, it doesn’t come without limits. So there is a piece of law called the Inheritance (Provision for Family and Dependants) Act 1975.

This gives certain classes of people under certain conditions the opportunity to raise a claim against the estate if reasonable financial provision hasn’t been made for them. It’s a very complex area, but essentially it means that while you can potentially cut members of your family out of your Will, if they meet certain conditions, then they may be able to take the matter to court after your death. In this case, a judge decides whether they should be entitled to receive all or part of your estate.

So when it comes to omitting people from your Will, you shouldn’t do so without getting proper advice to make sure that you’re managing any future conflict

No, that’s not true. If there are any debts outstanding at your death, these need to be paid from your estate. The debts are paid first before any beneficiaries receive their entitlement – until the total debt is cleared or the money runs out.

The debt isn’t inherited – the family is not responsible for paying the debt personally, but as part of the administration process, any debts are paid out of the estate.

Wills and Living Wills are very different documents. They don’t interact with each other at all. A living Will, also known as an advanced directive, allows you to express the type of medical care and treatment that you do or don’t want to receive in the future.

Meanwhile a Will establishes what happens to your estate on death. Obviously, a living Will applies whilst you’re alive, whereas a Will establishes what happens on death.

A living Will cannot direct what happens to your assets on death and, likewise, a Will cannot deal with what happens in your lifetime.

The role of attorney on an LPA and the role of an executor for Wills are completely separate. Although often some people will be appointed to both roles, they don’t overlap at all.

An attorney under an LPA has no authority to deal with someone’s estate if they die, or even to update the person’s will. A lasting power of attorney ends when the donor dies. That’s when the Will comes into play and your appointed executives then take over. So, no, your attorneys cannot deal with your estate after your death.

It doesn’t have to be. A Will can be as simple or as complicated as you like. It depends on your circumstances. And that’s why we’re here, as professionals to help you through that. We make the process as simple as we possibly can for you and take all of the red tape away from you.

In terms of cost, that depends on what your view of expensive is, but there are lots of cost effective options. Even in the more complex cases, the cost of preparing a Will is lower than the cost of the future implications after your death. So no, it doesn’t have to be complicated and it doesn’t have to be expensive.

This is something I’m hearing more and more often. But having a Will doesn’t avoid probate. The term probate refers to a legal process which grants a named person legal authority to wind up the affairs of a deceased person.

This document is called a grant of probate if there’s a Will; and a grant of letters of administration if there is no Will. Now, whether probate is required or not depends on how assets were held and the value of these assets.

The presence or absence of a valid Will has absolutely no bearing on whether or not probate is required. It depends on the type and value of assets.

If Probate is needed to administer your estate after you die, then your Will actually becomes a public document, and anyone can apply for a copy. It’s really important to bear that in mind when you write your Will and avoid including any information that you wish to keep private.

More confidential or sensitive issues can be addressed in a separate side ‘letter of wishes’ to your executives or trustees, rather than being in the Will itself.

In fact, you can access historical Wills as part of researching your ancestry, so future generations might read your Will.

Get in Touch with your expert, Claire

We offer expert advice and guidance every step of the way to ensure that your Will accurately reflects your needs to give you peace of mind that your estate will be distributed as you wish.