Ashby de la Zouch

01530 639 031

Tamworth

01827 758 041

FAQ about Wills

 

Here is a selection of FAQ about Wills. We understand that your Will carries a lot of responsibility when you die and you'll want to make sure what you want to happen, happens. We would always advise it is best that you speak to a solicitor to look at your options. But we wanted to create a FAQ page that clears up any perceptions about wills, so you're best prepared when it comes to making your own.

 

Why do I need a Will and What happens if I don’t have a Will?

  • You should make a Will to ensure your assets go where you want them to when you are no longer here. This is the only way to specify who gets what when you die.
  • If you don’t have a Will, then your estate will be distributed in accordance with the intestacy rules. These are a set of rules laid down by the government many years ago and they state who gets what, in the event that you die without a valid Will.
  • If you are married or in a civil partnership and you also have children, then your spouse will inherit assets up to the value of £270,000, and will also receive all of your personal possessions regardless of their value. If you have assets worth more than this amount, then your spouse will get one half share of everything above £270,000, with the other half going to your children.
  • If you are not married or in a civil partnership, your assets will pass to your children. If you have no surviving spouse, civil partner, children or grandchildren then there is a set list of relatives who may inherit. If there are no surviving relatives, then the estate could ultimately pass to the Crown.
  • If you do not make a Will, then you don’t get to choose who inherits your assets. You might have specific items you want to leave to someone in particular, or you may want to make provision for a stepchild or partner who you are not married to. The intestacy rules do not make any provision for unmarried partners or stepfamilies but even if you are married with children, you should not assume the rules will distribute your estate in the way you want it to be divided.
  • You can also make provision for your children in your Will. This can include appointing guardians, the people with whom your children will live, and who will be responsible for the day to day care of your children if you die before they reach 18. It is very important that you choose the right people to bring up your children, should the worst happen. No one is automatically entitled to care for your children, if you do not appoint a guardian in your Will.
  • The intestacy rules provide for your assets to be held by Trustees until your children reach age 18. Some people feel 18 is too young, and would prefer their children not to inherit until they are a bit older. In your Will, you can specify a different age (or ages) for your children to inherit.
  • When you make a Will, you choose who to appoint as your Executors and Trustees. You can select the most appropriate people, those whom you trust and who you feel can handle the legal responsibilities involved in these important roles. If you do not make a Will, the intestacy rules set out who is entitled to administer your estate. This may not be the people you would choose, and so it is important to consider who is suitable to take on this role. If there is no one you feel is suitable, then you can choose to appoint our experienced lawyers to take on the role for you.
  • You can also make provision for your pets in your Will, including nominating who you would want to take care of your pets when you are no longer here. If there is no one who could take on your pets, you may wish to nominate a charity who could arrange for your pets to be rehomed.
  • If you want to leave anything to friends or charities, you will need to make a Will in order to make provision for this. If you do not leave a Will, you can’t leave gifts to friends and charities. With no Will, the distribution of your assets will be decided by the intestacy rules, which make provision for specified relatives only, as explained above. If you have a particular cause you care deeply for, or want to leave a gift to a loved friend, you will need to make a Will to ensure your wishes will take effect.

 

My spouse will automatically get everything, so what’s the point of a Will?

  • Many people believe that if you are married then you are automatically entitled to the whole of your spouse or civil partner’s estate when they die. This is a common misconception and the reality is that it may not be true.
  • Your spouse or civil partner will not necessarily inherit your whole estate. What they inherit will depend on the value of your estate, and what other family members you have.
  • If you don’t have a Will, then your estate will be distributed in accordance with the intestacy rules. These are a set of rules laid down by the government many years ago and they state who gets what, in the event that you die without a Will.
  • If you are married or in a civil partnership and you also have children, then your spouse will inherit assets up to the value of £270,000, and will also receive all of your personal possessions regardless of their value. If you have assets worth more than this amount, then your spouse will get one half share of everything above £270,000, with the other half going to your children.
  • If you are not married or in a civil partnership, your assets will pass to your children. If you have no surviving spouse, civil partner, children or grandchildren then there is a prescribed list of relatives who may inherit. This begins with parents, then siblings, then aunts and uncles, then “half” aunts and uncles. If any of these relatives have died, then their children will take their share. If there are no surviving relatives, then the estate could ultimately pass to the Crown.
  • If you don’t make a Will, then you don’t get to choose who inherits your assets. The intestacy rules make no provision for unmarried partners or stepfamilies, but even if you are married, you should not assume the rules will distribute your estate the way you want it to be divided.

 

Why should I pay a solicitor to do my Will, when I can do it online or get a form from the Post Office?

  • There are many reasons why using a solicitor can be the best way to get your Will prepared, and provide the peace of mind that it has been done properly.
  • Firstly, it is important that the correct language and terminology are used in order to give effect to your wishes. Making a Will yourself may mean that what you intend to say is not how your Will is interpreted. It may be perfectly clear to you what you want to say, but if there is any ambiguity or confusion then your Will may not be understood in the way you intended. This can result in expensive and stressful litigation, just at the time when your loved ones are grieving for you. Our solicitors have many years of experience and training, and we will make sure your Will is in accordance with your wishes, and will take effect the way you want it to.
  • When we meet with our clients, we take the time to discuss their wishes, circumstances and priorities. Our experienced lawyers can offer advice and suggestions about matters you may not have considered. For example, you may need to provide for vulnerable beneficiaries, or wish to protect against care fees or Inheritance Tax. Your Will needs to cater for many different scenarios and there may be matters you haven’t thought of, that our experienced lawyers can assist with.
  • Our aim is to provide the highest level of service and expertise, and we always aim to get it right. But there may be times when even we make a mistake. If this does happen, you have the reassurance of knowing that we hold professional indemnity insurance, so there will be funds available to compensate you (or your estate) for any loss you may suffer as a result of our mistake. Solicitors are regulated by the Solicitors Regulation Authority, and we operate a comprehensive internal complaints procedure. As a result, you can be assured of knowing that there is always somewhere to turn if a mistake is made.
  • When you have made a Will, you need the peace of mind of knowing exactly where it is, that it is safe and that you can access it at any time. You also want the reassurance that it will be easy for your loved ones to obtain your Will after you have gone. We offer the safe storage of documents for our clients, and we provide copies of the signed documents for you to keep at home. We can also register your Will with Certainty, the National Will Register. This can help those left behind know where to find your Will, and can make life easier for them at a very difficult time.
  • There are strict rules setting out how a Will must be signed and witnessed in order to be valid. If the rules are not followed, then the Will may be invalid. Where the Will is signed in our offices, we provide the independent witnesses and ensure that all signing formalities are complied with to make sure the Will is correctly executed.
  • Your Will may be challenged after you die, especially if there is doubt as to the circumstances in which the Will was made. Problems can also arise if you are excluding a family member. For example, allegations that you did not fully understand the Will, or that someone was pressuring you into making it, can mean the Will is declared invalid. When we prepare Wills for our clients, we can provide full advice about the risks of potential challenges and take steps to minimise the risks of the Will being contested.

 

What happens if I get divorced after making my Will?

  • Many people assume that a Will made while you are married is automatically cancelled if you later get divorced. This is a common misconception, and the truth is that getting divorced does not mean your Will is cancelled. Your Will remains valid, but your ex-spouse is treated as if they had died on the day the divorce becomes absolute. So any appointment in the Will of your former spouse as an executor or a beneficiary will no longer take effect, but the rest of the Will stays valid. Separation or divorce can be a good time to review who you want to inherit your estate when you die. If this is not your former spouse, then you should update your Will.

 

My spouse and I are separated – does this affect my Will?

  • If you are separated but still married, then this has no effect on your Will at all. You are still legally married to your spouse and the terms of the Will remain unaffected. So if you don’t want your spouse to inherit from you or to deal with the administration of your estate, then you should update your Will as soon as possible.
  • When a couple separate, they are often going through a process of reaching a financial settlement. This can be a good time to review who you want to inherit your estate when you die. If this is not your soon-to-be ex, then you should update your Will. You do not need to wait until the divorce is finalised before changing your Will.
  • You don’t have to leave anything to your spouse if you don’t want to. However, spouses and former spouses are two of the categories of people permitted to make claims under the Inheritance (Provision for Family and Dependents) Act 1975. They may be able to make a claim against your estate for reasonable financial provision and, if successful, could end up receiving a share of your estate. Our specialist team can advise on how best to protect your wishes. This can include signing a statement that explains your reasoning, which can be used to help protect against any potential future claims. You should also seek specialist advice regarding the financial settlement, and whether you have a clean break and consent order.
  • If you don’t have a Will at all, then your spouse will inherit under the Intestacy Rules. These are a set of rules laid down by the government which state what happens to the assets if a person dies without a Will. If you are still legally married (regardless of whether or not you are separated) then your spouse will inherit some or all of your estate. What they receive will depend on whether you have other family members such as children, and also on the value of the estate. It is always best to make a Will because you then decide who gets what from your estate.

 

What happens if my executors die before me?

  • If all of those you have named as your Executors die before you, then you should update your Will and appoint new people to take on this role.
  • If you don’t have a valid appointment of Executors in your Will, then there are rules in place to specify who is entitled to administer your estate. This may not be the people you would choose and so it is important that you consider who is most suitable to take on this role.
  • If there is no one you feel is suitable, then you can choose to appoint our experienced lawyers to take on this responsibility for you.

 

Can I say who my children should live with when I die?

  • The appointment of guardians is an extremely important part of making a Will, and gives you the peace of mind to know that you have made the best possible provision for your children if you die before they become adults.
  • No one is automatically authorised to care for your children if you die while they are under 18. You should give careful thought to who you want them to live with, and include a valid appointment of guardians in your Will.

 

Can I direct what happens to my pets when I die?

  • Yes, you can include provision for your pets in your Will. You should consider who you want to take care of your pets when you are no longer here. If there is no one who could take on your pets, you may wish to nominate a charity who could arrange for your pets to be rehomed.
  • Under the law, pets are considered mere “possessions”, although to their owners they are of course much more than this. Many people want to make sure their pets will go to a good and loving home if they are no longer around to care for their beloved animals. This provision can be included in your Will, and you can also include a gift of a sum of money to help pay for the care of your pets throughout their life.

 

How often should I review my Will?

  • Once your Will has been signed and witnessed in accordance with the legal rules, you can breathe a sigh of relief and know that it is done. However, you should keep it under review on a regular basis, to ensure that it still fits with your circumstances and has not become out of date. A Will should be viewed as a living document, and not something you sign once and then forget about forever.
  • As times passes, circumstances, wishes and relationships may change. We recommend you review your Will every two years or so, and also on any significant events in the family, such as births, deaths, marriages and divorces. It may be that you review your Will and it is still perfectly fine. Or it may be that something has changed that makes you want to tweak it, or bring it up to date.
  • Changes in tax rules may mean your Will is no longer as tax efficient as it was, or it may be that those you have appointed as executors have died or are no longer the people you wish to choose.
  • If you have married after the Will was made then it is likely that your Will is now invalid. If you get divorced, your Will is affected and should be reviewed with one of our experienced lawyers.
  • If in doubt, arrange for a chat with one of our team and we can review whether your Will is still appropriate to your circumstances.

 

I don’t want to leave anything to my child, is that possible?

  • You can leave your assets to anyone you choose, and this can include leaving out a son or daughter completely if you so wish. This may not be an easy choice, and may be decided on with regret and heartache.
  • If this is the decision you have reached, you do have the option of excluding family members, should to choose to do so. However children, stepchildren and others treated as a “child of the family” are included in the categories of people permitted to make claims under the Inheritance (Provision for Family and Dependents) Act 1975.
  • They may be able to make a claim against your estate for reasonable financial provision and, if successful, could end up receiving a share of your estate. Our specialist team can advise on how best to protect your wishes. This can include signing a statement that explains your reasoning, which can be used to help protect against any potential future claims. Please speak to one of our lawyers for advice if this is an issue of relevance to you.
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