Our Wills and Probate Department regularly speak to clients who wish to organise their affairs by preparing a Will. A Will is an important document to have in place sooner rather than later to ensure that your wishes relating to your assets are made clear and dealt with appropriately on your death.
We appreciate that there are many misconceptions about how a Will works, when they are needed and their importance. As such, we have listed below some of the frequent myths and the subsequent truths behind them.
Myth buster #1 – Making a Will means you won’t need to obtain a Grant of Probate.
Frequently, when we speak with a client about a loved one who has sadly passed away, they will often say that a Will was made and so they are under the impression that a Grant of Probate is not needed. Unfortunately, this is not always the case.
A Grant of Probate is a legal document, produced by the Probate Registry, which is often needed when a person dies. This document confirms that the named executors are authorised to administer the person’s estate in accordance with the Will they have written. Often, many banks, share registrars and certainly the Land Registry will want to see this document before they close or transfer any assets.
As such, just because a person has a valid Will, it does not mean that their Executors will not need to obtain a Grant of Probate. This will depend entirely on what assets the deceased had at the time of their death and the requirements of the relevant institutions.
If you are an Executor and unsure whether a Grant of Probate is needed, then please speak to a member of our team who will be able to review the circumstances with you.
Myth buster #2 – I’m married or in a civil partnership, so my spouse will receive everything if I pass away.
This is likely to be one of the most common misconceptions that we hear from people who do not have a Will in place and do not think that they need one.
If a person dies in England or Wales without leaving a Will, then the statutory Intestacy Rules apply which set out who receives their assets. The rules will differ depending on the person’s marital status at the time of their death, and the family members who have been left behind. As a result, it is possible that a person’s assets could pass to a family member who they would not have wanted to inherit from their estate.
Whilst it is correct to think that your spouse or civil partner will inherit in some way from your estate, they will not automatically be entitled to every asset that you own. Therefore, it is important to make a Will and ensure that your assets pass as you wish.
Currently, in England and Wales, if you are married or in a civil partnership when you die, your spouse will receive all of your personal belongings and the first £270,000 of your estate. Any assets over £270,000 will be divided as follows:
- Your spouse or civil partner will receive half of remaining assets
- The other half will be split equally between the surviving children. If a child has already passed away, their share would be split between their own children, if any.
By way of an example, if your estate was worth £600,000 then your spouse would receive a total of £435,000 and your children will share the remaining £165,000 equally between them.
If you do not have any children at the date of your death, your spouse or civil partner would then receive everything.
Myth buster #3 – Marriage or re-marriage will not affect my Will.
There are several circumstances that exist where a valid Will is revoked by a person’s actions. This is the certainly the case where a person marries or enters into a civil partnership. At the point of marriage or the formation of a civil partnership, any existing Wills made by that person are automatically cancelled and no longer valid. This means that the statutory Intestacy Rules mentioned above will apply to the person’s assets on death. As a consequence, this may mean that the deceased’s assets will pass to a family member who they would not have wanted to inherit from their estate.
There is, however, an exception to this rule. When making a Will, it is possible to insert a clause which states that when you marry or enter into a civil partnership with a certain person, your Will is not to be automatically revoked. This is known as a ‘Contemplation of Marriage’ clause and is used regularly in practice. The clause is only to be used when the person making the Will is expecting to get married or form a civil partnership at the time the Will is made, and within a reasonable timeframe.
With the above said, it is important that when a life event occurs, you should always review your existing Will or take advice about making a Will to suit your wishes. As such, please feel free to telephone our office on 01244 312306 to speak with a member of the Wills and Probate team today. We would be more than happy to answer any questions you may have.
