Wills and Probate FAQs
  • When I die, won’t my partner and children just get it all?

This is a very common assumption to make. In many cases, it might not be as straightforward as one would presume.

If you haven’t got a Will and your estate is worth less than £250,000, it will all go to your partner, provided that you are married or in a civil partnership. If you are not married, you’ll simply get nothing.

If your estate is worth more than £250,000, then the first £250,000 passes to your spouse/civil partner including personal possessions. The rest of the amount is then divided into two. Your spouse/civil partner will receive the interest or income from the first 50%. Your children will receive an equal share of the remaining 50%. However, when your spouse/civil partner dies, the half they were receiving the income from, then passes to your children to be split equally.

If you do not have any children, your partner inherits the first £450,000 and half of your estate. The remainder will go to your closest living relative (e.g. parents, siblings, cousins). Any step-children you have will not inherit anything.

  • Who should I appoint as my Executors?

When going through the process of deciding who your executors will be, most people appoint relatives, friends and legal professionals for this role. You can appoint up to as many as four executors. Many people appoint their partner in the first instance and then often appoint a family member, friend or a professional as a substitute. Choosing a professional as one of your executors is a good idea as this person may have the necessary technical and legal expertise to administer the estate in accordance with your Will and can also remain objective at this emotional time.

  • I’m getting married/forming a civil partnership, do I need to update my Will?

Yes. Unless your Will has a specific clause referring to your intention to get married/civil partnership then your current Will is automatically revoked/made void.

Do not assume that your new spouse/civil partner will receive everything anyway. The intestacy rules will dictate what happens to your estate if there isn’t a Will.

Engaged couples can make Wills in anticipation of their upcoming marriage/civil partnership and prevent their Will from becoming invalid when that marriage occurs.

  • I’m getting divorced/dissolving my civil partnership, do I need to update my Will?

When you get divorced, your Will remains valid. In terms of your Will, your ex-partner is treated as if they have ‘predeceased you’ meaning they will no longer benefit from your estate. Furthermore, they will also not be allowed to act as an executor. If appointed, this could slow down the administration of your estate. If your ex-spouse/civil partner was chosen as the sole beneficiary they will not inherit. In the absence of any other beneficiaries named in your Will, your estate would be distributed under the rules of intestacy.

If you are separated only, in the eyes of the law you are still legally married or in a civil partnership. Until your divorce/dissolving of civil partnership is finalised, your spouse/civil partner remains entitled to your estate and assets as stated in your current Will, even if you were living with a new partner when you died.

We would highly recommend that following a divorce or legal separation – or any major change in your life – that you should update your existing Will or make a new Will to combat these changes.

  • I don’t have a Will, will my step-children inherit?

No. If you die without a Will, your estate will follow the rules of intestacy. These rules dictate who inherits from your estate.

Under the rules of intestacy, step-children cannot inherit unless you have adopted them. 

  • If I make a Will, will I need Probate?

Whether you have a Will or not will not have any influence on whether you will eventually need probate. It will all depend on the value of your estate at the time of your death.

If an estate is of a high value, assets are in excess of the thresholds specified by individual financial institutions or you own a property in your sole name, then probate will be required.

However, whether you have a Will or not will affect how you apply for probate. If you have a Will you will name executors. Your executors will write to the Court to apply for a Grant of Probate. Your executors will distribute your estate in accordance with the wishes in your Will.

If you do not have a Will, the rules of intestacy will apply. Those who have a right to inherit under these rules can apply to the Court for a Grant of Representation (instead of a Grant of Probate).

  • Can executors be beneficiaries?

Yes. It is recommended that your executors are those that you are close to and trust to be able to distribute your estate in accordance with your Will. Therefore, it is common that the person you choose to be an executor is also someone you would like to benefit from your estate.

Although you may not want your executor to be a beneficiary to the entirety or a large part of your estate, you may wish to leave them a gift in your Will to thank them for all the work they may undertake as executors. Although, it is not an obligation to leave them anything.

  • I don’t have any children now but, I intend to have children in the future. Should I wait until they are born before writing a Will?

No. It is possible to include hypothetical/unborn children as beneficiaries. We will ensure that there is a clause to say what will happen to your estate if you have children who are alive at the time of your death and a further clause to state what will happen to your estate if you die before you have any children.

  • Do you charge for storing my Will, Power of Attorney, Unregistered Title Deeds?

No. As we value our clients, we offer this service free of charge.

  • I have an Enduring Power of Attorney; do I need a Lasting Power of Attorney?

Since 1 October 2017, no further Enduring Powers of Attorney can be made (they were replaced by Lasting Powers of Attorney).

If you made an Enduring Power of Attorney prior to this date, it is still valid and can be used. If, however, your Enduring Power of Attorney is required to be changed then you will need to make a Lasting Power of Attorney.

If your attorney believes that you have become or are becoming mentally incapable, then your Enduring Power of Attorney is required to be registered with the Office of the Public Guardian.

Your Enduring Power of Attorney only covers your Property and Financial Affairs so you may wish to consider making a Lasting Power of Attorney for Health and Welfare and/or a Living Will/Advance Directive, to deal with your Health and Welfare matters.

WHAT TO DO NEXT

If you would like to enquire about any of our Wills and Probate services, call us now on 0113 200 9787 or email us at enquiries@oakwoodsolicitors.co.uk.

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