The law surrounding both Wills and probate can be confusing and a number of myths exist. We take a look at a few common misconceptions. We set out below 7 Wills and Probate myths.
1. I don’t need a Will as I am married and my spouse will inherit everything
If you do not make a Will then your estate will pass under the Rules of Intestacy. These provide that your spouse will inherit all of your personal possessions plus the first £250,000 from your estate, if you have children. The remaining part of the estate will be split, with one half going to your spouse and the remaining half shared equally between your children.
2. My home will pass to my spouse when I die
If you own your home jointly with your spouse, then what happens after your death will depend on whether you hold it as joint tenants or as tenants in common. If you own it as joint tenants, then on your death it would become wholly owned by your spouse.
However, if you own it as tenants in common, then your share would become part of your estate and would be distributed either in accordance with your Will or, if you do not have a Will, in accordance with the Rules of Intestacy. This could cause complications for your spouse.
3. I have left everything to my spouse, so my children will inherit it all in the end
If you leave your estate to your spouse, there are no guarantees that your children will ever inherit it. Your spouse may remarry, in which case their Will would automatically become invalid and their new spouse would be likely to inherit most of their estate if they did not make a new Will.
There is also a risk that your spouse could lose the money in a poor investment or it could be spent, for example on care home fees. By making a Will leaving your spouse a life interest in your money and property, they can have the benefit of it during their lifetime, but after their death it would pass to your choice of beneficiary. This would also protect your estate from being spent on their care home costs.
4. I can amend my Will, provided I initial the amendments
This is not the case, and any amendments made in this way will not take effect. It is advisable to review your Will and make a new one if you wish to change the provisions. If only minor alterations are needed, it may be possible to add a codicil.
5. An executor cannot be a beneficiary
An executor can also be a beneficiary. A spouse is frequently named as both in Wills. There are strict rules about what an executor can do however, so it is advisable to take legal advice if you are named as an executor and you want to buy anything from the estate for example.
6. Probate is always needed
Probate is not always necessary, for example, it might not be needed where someone has left everything to their spouse and most assets are already jointly held or where an estate is small. There is no exact definition of a ‘small estate’, and each bank has its own limit over which it will wish to see a Grant of Probate before closing an account and releasing funds. This varies from £5,000 to £50,000.
7. Will writing is easy so I can write my own
The laws dealing with Wills are strict and it is easy to make inadvertent mistakes that can mean that a Will is invalid. When there is ambiguity over a Will or it is not valid, then there is a substantially increased risk of a dispute arising among family members.
Having a Will professionally prepared is not expensive and could potentially save your estate thousands if it was forced to defend legal action.
An expert Wills advocate will be able to go through your requirements with you and ensure that you have provided for your loved ones in the way that you want.
Contact our Wills and probate advocates
At Quinn Legal, we offer a range of Wills packages, including an online Wills service. We also deal with applications for a Grant of Probate and estate administration.
If you would like to speak to one of our expert Wills and probate lawyers, call us on 01624 665522 or email us: hello@quinnlegal.im.
Alternatively, you can fill out our online questionnaire and we will contact you.