It is estimated that two thirds of the UK population have not made a will. At Hodge Jones & Allen Solicitors, we see many examples of what can go wrong when a person dies without a will.
If there is no will, fixed rules apply as to who will inherit, in what proportions and when. Some of the problems which can arise include:
The advantages of making a will include:
This is just a short overview of the numerous problems that occur when you don’t make a will.
A Lasting Power of Attorney (LPA) is a formal deed which gives authority to another person (your attorney) to make decisions on your behalf.
This is a useful document as it means that you can choose who should manage your finances and make decisions about your health and welfare if you are unable to do this yourself in the future.
Most powers of attorney become invalid if the person who set it up loses mental capacity, but a Lasting Power of Attorney remains in force whether you have capacity or not.
There are two separate LPAs: one for property and finance and one for health and welfare. You can choose different attorneys for each LPA.
You can appoint one attorney or a number of attorneys. If you appoint more than one attorney, you will have to consider whether they must make all decisions together or whether they can act independently of each other.
It is possible to appoint one attorney, such as your spouse, and also a replacement attorney, such as your children, if your spouse is unable to act.
Setting up LPAs is an important part of planning for the future.
A grant of probate is a court order which gives the executors authority to deal with property and assets owned by someone who has died (the Deceased). The grant gives the executor the legal authority to access the Deceased’s bank accounts and sell property and shares owned by the Deceased.
If the Deceased did not leave a will, this court order is known as a grant of Letters of Administration.
The grant of probate is presently issued by one of a number of district probate registries but is currently in the process of moving online and being centralised.
There are many ‘will writing’ products on the market and in theory you can make your own will. However, the rules for making a will are complicated and for a relatively modest fee a solicitor can ensure that:
Badly drafted wills can result in damaging probate disputes each year; expensive litigation is the last thing you want to leave your loved ones.
Even if you have already made a valid will, we would recommend that you review it regularly – at least every 5 years. Your life circumstances may change: perhaps you are getting married? Divorced? Perhaps you now earn considerably more than you did when you made your original will? Or have received an inheritance of your own? Any significant changes in your status or circumstances can affect your existing will, and may even make it invalid. If you marry or remarry, for example, your will is automatically rendered invalid unless it was made clear at the time that you were intending to marry and wanted the current will to remain in force afterwards.
Since both your children are under 18 then 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 talk to your solicitor (as should he) about making a valid will and also about how you may be able to avoid paying unnecessary inheritance tax.
The Procedure to make a new will with us:
The whole process is usually quite quick (often no more than a few weeks) and quite painless!
You may already have a will which needs to be updated to take account of changes in your life. Will amendments need to be undertaken with care to ensure your wishes are fully understood and are legally binding. Most importantly, if your will does not reflect your current circumstances, your assets may be distributed in a way you hadn’t intended.
You can’t amend your will after it’s been signed and witnessed. The only way you can change a will is by making an official alteration called a codicil which we can prepare for you. You must sign a codicil and get it witnessed in the same way as witnessing a will.
If you need more substantial changes made to your will it is usually advisable to have a new will prepared by one of our legal advisers which formally revokes your previous will.
It is sensible to check your will every so often to see if it needs updating. You should seek professional advice on updating your will if any of these circumstances apply to you:
These are just examples; there may be many other circumstances when you need to change your will.
We can advise on how these changes can affect the distribution of your estate and how to change both the beneficiaries named in your will and the amount of money or assets paid out to them. Our team can also provide specialist tax advice to reduce or defer the payment of inheritance tax in your estate where possible.
Depending on your relationship to the deceased you may be able to make a “maintenance” application under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”). Section 1 of the Act lists the persons who may make an application to the Court for maintenance.
These persons are essentially:
Should you consider yourself to have maintained by the deceased you may wish to speak to one of our team to assess the merits of your claim.
This generally depends on what type of claims you wish to make.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“Act”) must be issued within 6 months of the date of the grant of probate or letters of administration (grant of representation).
Challenges to a Will generally have to be made within 12 years (but obviously the sooner the better) unless you are alleging fraud.
Unbeknown to many clients one of the main legal objectives of litigation is to encourage parties to negotiate and try to resolve their grievances prior to escalating matters to court. Court should always be the last resort and parties can be penalised for escalating matters to court without showing evidence of prior negotiation.
Parties are encouraged to negotiate settlement of a dispute and may choose to use a form of Alternative Dispute Resolution (ADR). There are many methods of ADR available to clients – mediation these include third party facilitators through mediation, third party decision makers through arbitration, third party informed opinions through early neutral evaluation, and permanent and or temporary decision making through independent adjudication.
Our skilled and experience solicitors can assist you in negotiating the best settlement which may allow you to resolve your case expediently while mitigating court costs and legal fees.
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