Frequently Asked Questions
What happens if I don’t make a Will?
Statutory laws of succession (which came into being with The Administration of Estates Act in 1925 and have barely changed from that day to this) outline who will inherit your estate. These statutory laws may not reflect your own wishes. They don’t recognise unmarried couples for example, so your partner will inherit nothing from your estate if there is no Will. They don’t take into account things such as divorce, second marriages, or step children. They don’t cater for things such as inheritance tax planning or residential care fee avoidance. They don’t allow personal wishes such as gifts to your grandchildren as well as your children, or charitable gifts. They don’t allow for complete breakdowns in relationships (quite often who you don’t want in your Will is just as imporant as who you do want in your Will). They don’t deal with other issues such as guardianship of children and funeral wishes.
What happens to children under eighteen?
Statutory law doesn’t allow a child to inherit money whilst under eighteen, so it is vitally important that parents make Wills to appoint the right people to look after the estate whilst the children are still minors. Probably more importantly the law is virtually silent on the subject of guardianship. Without a Will it becomes a court decision who looks after a child, and invariably this will mean periods of foster care or residential care for a child whilst this matter is being sorted out. For many people with children below eighteen the most important reason for drafting a Will is to appoint legal guardians of your own choosing for your children.
Is it complicated and expensive?
No. Most Wills are very straight forward and we always conduct a simple home visit with all of our clients to fully explain everything before a Will is made. The vast majority of Wills are also inexpensive to make. Our initial home visits are always free of charge to the client, and we always explain the exact fee for the Will to our clients before drafting them.
Can my ex (or anybody else) claim on my estate?
This can be a dangerous area, and we take great care to fully explore your circumstances to avoid any unwanted claims. The Inheritance (provision for family and dependants) Act 1975 allows certain categories of people to claim on an estate where adequate financial provision is not made for them. Ex spouses and children are among the eligible categories. This doesn’t mean they will be successful in any claim as levels of dependancy have to be taken into account and no two cases will ever be the same. Whilst drafting your Will we take detailed records of your circumstances to ensure that you have been given the correct advice, and that unwanted and unnecessary claims are avoided.
Can a beneficiary be an executor?
Yes. Often they make the best executors as they have a vested interest in “getting the job done”. This also avoids the unnecessary expense of appointing professionals who will charge a fee. Wills have to be signed in the presence of two witnesses and it is these witnesses (and their spouses) who cannot be beneficiaries under a Will. One of our representatives will normally be a witness to your Will, along with one of your friends or neighbours if your Will is made at home, and we are very careful to ensure that this doesn’t disqualify anything contained in the Will. In the case of Ross v Caunters (1980) a solicitor was successfully sued for allowing a spouse of a beneficiary under a Will to act as a witness.
Are an unmarried couple next of kin to each other?
No. The statutory laws of succession which determine who inherits in the absence of a Will don’t recognise partners at all. For this reason it is vital that unmarried couples write Wills if they wish to protect each other. There can be terrifying financial consequences for a person if their partner dies before them without a Will.
Can I protect my house from residential care fees?
In certain circumstances yes. We are happy to give specific advice tailored to your circumstances to show how you can best mitigate residential care fees. In fact many of our clients initially came to us because they wanted up to date advice in this field.
Will I need to pay inheritance tax?
We all have a threshold allowance before the payment of inheritance tax. If your estate is larger than the allowance then inheritance tax may be paid. We can advise on methods of Will drafting and estate planning to mitigate this.
Do I need a solicitor?
Where do I store a Will?
Lost Wills are as big a problem as no Will. When a Will can’t be located there will almost always be a presumption of revocation. Your Will needs to be stored securely, and your executors need to know where it is. We offer a secure storage facility at a very small cost to you, and strongly advise that all of our clients store their Wills with us.
What if my circumstances change?
We recommend that Wills are reviewed periodically to reflect changes in circumstance. An out of date Will can cause as much harm as no Will. We also stay in touch with all of our clients once they have made their Wills with us so that we can keep you up to date on changes in the law as well as your own circumstances.
Am I too young to make a Will?
Anybody over eighteen can make a Will. Once you are over eighteen you can’t be too early but it is very easy to be too late! Anybody with assets or children should make a Will.
What if I already have a Will?
Well done! If you already have a Will the only thing left to do is to keep it up to date to reflect changes in your circumstances or changes in the law. Many of our clients already had a Will when they first approached us, but due to changes in circumstance needed to update it. One major point to remember here, marriage automatically revokes a Will. If you have married since making your Will then that Will is no longer valid.
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