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Wills and Probate FAQs

Why Make A Will?

It is estimated that 40% of the population dies without making a will. If you do not make a will, the law decides what happens to your estate and this may not be what you expect or intend.

Married Couples
You should not assume that because you are married everything automatically passes to your spouse on your death. This is not necessarily the case, particularly if you have children and your estate exceeds £250,000.00.
Guardians
If you have children under 18 it is important to consider using your will to appoint guardians to care for any children under 18 at the time of your death.
Cohabitation
There is no such thing as a “Common Law Spouse”. Unmarried couples who live together must make wills if they wish to leave assets to each other. The law does not give a surviving partner the same rights as a married couple. Your partner could get nothing and may even be forced to leave the property you occupied together.

What Are The Dangers Of Homemade Wills?

Will drafting is a highly specialised area of law that should be undertaken by experienced professionals who are properly insured.

A will is a legal document that must meet all the requirements laid down by the law in order for it to be valid. It is only after your death when it comes to dealing with your will that an error in the signing and witnessing of the will, for example, comes to light. This can result in extra cost and delay for your loved ones in dealing with your wishes at what is already a difficult time for them.

Why Keep Your Will Updated?

Whilst wills are normally drafted to take account of likely future circumstances, it is wise to review your will every two to three years to reflect changes in your life. The following events should trigger you to review your will;

Death of a spouse or partner.
Marriage or Divorce.
Cohabitation.
Birth of Children and Grandchildren.
Personal Injury award.
A significant inheritance.
Moving House.
Entering of or sale of a business.

Remember – if you don’t choose who inherits your estate, then the law will choose for you.

Who Inherits If You Don’t Have A Will?

If you don't have a will there are rules for deciding who inherits your assets, depending on your personal circumstances. The following rules are for deaths on or after 1 February 2009 in England and Wales.

If you're married or in a civil partnership and there are no children The husband, wife or civil partner won't automatically get everything although they will receive:

personal items, such as household articles and cars, but nothing used for business purposes

£400,000 free of tax - or the whole estate if it was less than £400,000

Half of the rest of the estate

The other half of the rest of the estate will be shared by the following:

surviving parents

if there are no surviving parents, any brothers and sisters (who shared the same two parents as the deceased) will get a share (or their children if they died while the deceased was still alive)

if the deceased has none of the above, the husband, wife or registered civil partner will get everything

If you're married or in a civil partnership and there were children

Your husband, wife or civil partner won't automatically get everything, although they will receive:

personal items, such as household articles and cars, but nothing used for business purposes

£250,000 free of tax - or the whole of the estate if it was less than £250,000

a life interest in half of the rest of the estate (on his or her death this will pass to the children)

The rest of the estate will be shared by the children.

If you are partners but aren't married or in a civil partnership

If you aren't married or registered civil partners, you won't automatically get a share of your partner's estate if they die without making a will. If they haven't provided for you in some other way, your onlyoption is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. If you feel you've not received reasonable financial provision then please feel free to give us a call to discuss your options further.

If there is no surviving spouse/civil partner

The estate is distributed as follows:

to surviving children in equal shares (or to their children if they died while the deceased was still alive)

if there are no children, to parents (equally, if both alive)

if there are no surviving parents, to brothers and sisters (who shared the same two parents as the deceased), or to their children if they died while the deceased was still alive

if there are no brothers or sisters then to half brothers or sisters (or to their children if they died while the deceased was still alive)

if none of the above then to grandparents (equally if more than one)

if there are no grandparents to aunts and uncles (or their children if they died while the deceased was still alive)

if none of the above, then to half uncles or aunts (or their children if they died while the deceased was still alive)

to the Crown if there are none of the above

It will take longer to sort out your affairs if you don't have a will. This could mean extra distress for your relatives and dependants until they can draw money from your estate.

What Is A Lasting Power Of Attorney?

An LPA is a legal document that you (the Donor) make using a special form. It allows you to choose someone now (the Attorney) that you trust to make decisions on your behalf about things such as your property and affairs or personal welfare at a time in the future when you no longer wish to make those decisions or you may lack the mental capacity to make those decisions yourself.

An LPA can only be used after it is registered with the Office of the Public Guardian and unfortunately, this procedure can take up to six months due to a backlog. An LPA is often needed at a moments notice – if someone has a stroke or an accident, or goes into hospital – and therefore it is important to have an LPA in place before anything should happen to you.

Who Can Make An LPA?

Anyone aged 18 or over, with the capacity to do so, can make an LPA appointing one or more Attorneys to make decisions on their behalf. You cannot make an LPA jointly with another person; each person must make his or her own LPA.

What Happens If I Don’t Have An LPA?

If you don’t have an LPA and you lose your mental capacity then it will be for any of your immediate family to apply to the Court to gain control of your finances. This process can take up to six months and can place added pressure on your family at what can be a very difficult time already.

The fees payable for the court application are:

Court application fee of £400

Appointment of Deputy fee of £100

Solicitors fees fixed by the Court at £850 plus VAT

There are then further fees payable in connection with being appointed as a deputy and the need for the Court to supervise the Deputy.