Wills & Probate Lawyers

The advantages of making a will include:

1. You can choose who will act as executor.
2. You choose who will be guardian and trustee for your children.
3. You can obtain advice about Inheritance Tax planning.
4. You can leave legacies to charities, friends and family members.
5. You will ensure that your estate passes to the right people.
6. If you are in a second marriage, you can provide for your spouse and ensure that your estate passes to children from an earlier marriage on their death.

If you fall into any one or more of the following categories, you can make a claim against an estate:

• Spouse
• Former spouse (provided they have not subsequently remarried)
• Children of the deceased
• Children of the deceased’s spouse
• Any person being maintained, either wholly or partly, by the deceased immediately before their death.
• Any person living in the same household as the deceased for two years immediately before the death, as their spouse.
• All references to a spouse also include a civil partner.

If you’re within any of these categories, then up to six months from the date that probate is granted, you can bring a claim for financial provision. That is not to say that you would be successful, merely that you fall within the category of people who could bring a claim.

The court will consider a variety of factors, including:

• Your financial needs and resources
• The financial needs and resources of any other applicant
• The financial needs and resources of any existing beneficiary
• The obligations and responsibilities which the deceased had towards everyone
• The size and nature of the estate.

It’s worth bearing in mind that while financially independent adult children have brought successful claims in the past, if there’s no ongoing financial relationship between you, the fact that they were your parent does not necessarily mean the court will make an award in your favour.

A “Living Will” refers to either an advanced statement or an advanced decision or directive.

An advance statement is a general statement of your wishes and views, generally relating to healthcare matters, to be considered if you become unable to decide or communicate your wishes. It is not legally binding but must be considered by those looking after you when they decide what is in your best interests.

An advance directive is a decision made now, to refuse all or some forms of medical treatment if you lose the ability to decide for yourself in the future. This includes instances where a lack of treatment could lead to your death. It can only be a refusal of treatment and cannot be used to request treatment. An advance directive is legally binding, provided it meets the requirements of the Mental Capacity Act.

An ordinary will would generally deal with the disposal of your property and finances on your death and does not deal with healthcare issues. It can also deal with the appointment of guardians for infant children and appoint executors, who deal with the administration of your estate.

Several life events may require you to update or review your will. For example:

• Marriage automatically revokes a will, and so if you get married or remarried, that would be a time to make a new will.
• If you separate from your partner or get a divorce and had made provision for them in your will, that would be a time to update your will.

Other times when we would advise you to review or update your will include:

• Buying a new property

• Starting a family

• Inheriting money, land or property

• The acquisition of business interest.

You may also need to update your will if:

• A beneficiary named in your will dies

• The law has changed in such a way that would affect the terms of your will.

Regardless of life events, we recommend that you review your will at least every five years to make sure that it still reflects your wishes.

Unlike marriage or remarriage, divorce does not revoke a will. All references to the spouse would be treated as if they had died before you. So, at the very least, this could create an intestacy or partial intestacy.

This is not a requirement but can be useful, particularly if you are making unusual provisions or perhaps provisions that might not be anticipated by your family. It may be just as well to explain it to them in advance, to try and avoid a situation where it could come as a big shock to them and cause a fall out after your death.

If they understand why you are doing it in that way, it may help to iron out any difficulties now and avoid a possible fall out or worse still, litigation, after your death. This may be particularly relevant in situations where there is a second family or where you are dividing a family business unequally.

Since both your children are under 18 they won’t be able to inherit directly. But this doesn’t mean they can’t benefit under your will. Your solicitor will be able to help you arrange for their inheritance to be held in trust for them until they are older. Meanwhile, you can ensure that your children don’t lose out by allowing the trustees you nominate to use the income and/or capital for your children’s benefit, such as to pay school or university fees on their behalf.

You should both make a will as soon as possible. Whether or not you automatically inherit your partner’s share of the house depends on whether you own it as Joint Tenants or Tenants in Common. If your ownership is as Tenants in Common your partner’s share of the property will pass to his children, as will his other possessions. If you were married then you would inherit the first £270,000 of your partner’s estate and half the remainder. You should both talk to a specialist solicitor about making a valid will and also about how you may be able to avoid paying unnecessary inheritance tax.