10 Myths about Wills and Probate

1. “Probate is always required”

You may not require probate where all assets in the estate are jointly owned with the surviving joint owner; where there is no property to sell; or if there are small funds in bank accounts where banks and building societies are happy to release funds without the grant of probate. You may wish to speak to a probate solicitor about whether a grant of probate will be required.

2. “If I get married my spouse automatically inherits my estate”  

If there is an existing Will, this will become automatically void if the testator marries or re-marries. If no Will exists, then the estate is administered as per the rules of Intestacy which may not provide your spouse with your entire estate. Under Intestacy Rules, your spouse will inherit all your personal possessions together with the first £322,000 of your net estate. Any remainder of the estate will be divided between your spouse who will receive a further 50% of the remaining estate and the other remaining 50% is shared between the family blood line which may be children, grandchildren, siblings, parents, aunts and uncles and so on. 

If you are not married to your partner, there is also the misconception that they will inherit as a spouse would. There is no such thing as a Common Law marriage in England and Wales and therefore if you intend to leave your long-term partner anything in your estate it is vital you prepare a Will that provides for this. Since without a Will your estate is distributed by following the rules of Intestacy.

3. “At least my property will automatically pass to my spouse”

When you die, your share of the property passes depending on how it is owned with your spouse or civil partner. There are two ways of owning a property: Joint Tenants or Tenants in Common. If you and your spouse are listed as Joint Tenants, the property will automatically pass to them by way of survivorship. However, if you are listed as Tenants in Common your share of the property will pass in accordance with the terms of your Will, or the default rules of intestacy which applies to those who do not leave a valid Will.

4. “I am named as an Executor so I must act when I do not wish to do so”

Although you have the right to act as an Executor to administer an estate, you are not obligated. Sometimes when a Will is created it appoints an Executor who at the time is able to perform the duties as an Executor, however later when the testator dies the Executor is not able to act either through location, age, loss of capacity or choice. If the appointed Executor decides they do not wish to act they can decide to renounce from their role permanently or reserve power for a time they would like to step in or pass this authority over to an attorney to step into their shoes. When preparing your Will you should consider perhaps making a provision for a replacement Executor or nominating more than one Executor in the event one does not wish to act. However, when choosing an Executor it is important to choose somebody that you trust. You can also nominate a professional Executor, such as a solicitor, to administer your estate which may relieve the burden from your family and loved ones who may not be familiar with the process.

5. “My stepchildren automatically inherit as if they were my own children”

Under the Rules of Intestacy where there is no Will, stepchildren do not automatically inherit from their stepparent. If you wish to leave a legacy for your stepchildren when you die, you must prepare a Will which provides for them otherwise it will follow the family bloodline.

6. “My family will look after my children if I die”

If there is no surviving parent with parental responsibility and you have not specified in your Will who you would like to be appointed as a child’s guardian, it will be for the Court to decide. It is much better to specify your nominated guardian for your children in your Will and whilst doing so, you can also leave your wealth to them via a trust, which means someone trustworthy can look after the money for the children, which can only be used for their benefit.  Under the trust you can also set the age when they inherit outright.

7. “When I die, my debts will die with me”

Any debts you have incurred within your lifetime whether this be a credit card loan, personal loan, mortgage liability, care fees, overpayment of state pension or unpaid utility bills etc, follow the estate.  They are not automatically written off and need to be paid by your estate before any beneficiaries can inherit, otherwise the creditors can pursue the Executor personally.  It is always best to be proactive in closing any accounts and notifying parties when somebody has passed.

8. “When does the “Reading of the Will” take place?”

You may have seen it the movies where families gather round a table to unveil and read the Will. However, in real life there is no official reading of the Will. The process is much more practical and is not released as a public document until probate is granted. Executors are the ones responsible for putting the Will into effect, although they are expected to share a copy with all beneficiaries.

9. “I am too young to make a Will / I don’t have anything worth leaving behind!”

Even if you feel you are too young or do not have many assets to leave behind, it is still wise to make a Will.  A Will includes your wishes about your funeral arrangements, personal possessions, charity gifts, the care of minor children and pets, and not just your cash and property.  Even a simple Will is worth having as it can always be updated in the future as your family grows, wealth increases or circumstances change.  It is very rare that someone would not benefit from a Will but if in doubt speak to a Wills & Probate lawyer.

10. “I can gift my money away to my family or friends to avoid paying inheritance tax”

Under current tax laws, your estate can still pay tax on assets that you did not own on the date of death, including outright gifts of cash or property.  The government allow an annual exemption of £3,000 every tax year to make a tax-free gifts.  Most other gifts are included in the value of your estate when you pass away for the purposes of calculating inheritance tax, unless the gift was made outright more than 7 years before you passed away.  If you want to plan to reduce your potential inheritance tax liability or are looking to make a large gift to family or friends you should consider seeking legal advice beforehand so that you can be made aware of your options and risks.