5 Common Misconceptions about Wills
The uncertainty caused by COVID-19 has left many of us thinking about our affairs.
This firm’s family wealth team has recently seen an increase in demand for Wills. As a result, we have received an increased number of queries relating to Wills. This article highlights some of the most common misconceptions about Wills, and outlines the truth behind them.
Getting married or remarried does not affect my existing Will.
Under the laws of England and Wales, any existing Will is revoked when an individual enters into a legally binding marriage contract. This is unless the Will has been drafted in contemplation of that marriage taking place. So long as your Will includes specific information in relation to your impending marriage, your Will can remain valid.
If your Will was not drafted in contemplation of marriage, and you marry without writing a new Will then on your death you will be considered to have died intestate, and the rules of intestacy will determine who inherits your estate. This can have unexpected consequences.
I had a Will drawn up a few years ago, but I now need to make some small alterations. I can make these alterations directly on the original document so long as I initial the changes.
Your Will is a legally binding document that deals with your money, property and possessions after your death. In order for your Will to be valid there are specific conditions that must be met when your Will is signed. If these conditions are not met, your Will may be held to be invalid and the rules of intestacy will apply.
The only way to change your existing Will is to make a new one or add a codicil. A new Will should declare that all earlier Wills are void, whereas a Codicil attaches itself to your existing Will and amends it instead of replacing it.
In these extraordinary times, ensuring that the signing requirements are met can be challenging. Testators will need to be more careful than ever to meet the requirements for a validly executed Will and should, where possible, seek professional advice.
I do not need to put a Will in place as my spouse will inherit all of my assets anyway.
It is true that if you have a spouse and you do not have a Will, your spouse will inherit some or all of your assets on your death by operation of the rules of intestacy. Couples may also have joint assets which will automatically be inherited by the surviving joint owner by operation of the law of survivorship. However, a Will not only deals with your assets on death, but is also an effective inheritance planning tool.
A Will is a significant part of your estate planning, as you can ensure that assets are distributed in accordance with your wishes. Without a Will in place, some of your assets may be liable to Inheritance Tax which could have been avoided if a Will was in place.
Estate Planning also includes efficiently dealing with certain business and agricultural assets which could give rise to Inheritance Tax relief on death. This can include for example, placing these assets into trust or leaving them to beneficiaries that would ordinarily pay Inheritance Tax (for example by leaving assets that qualify for relief from Inheritance Tax to your children and the assets that would be subject to Inheritance Tax to your spouse). If you have questions about your estate planning, then I would recommend that you seek professional advice to make the most of any relief available to you.
If I were to die my parents would look after my minor children.
As hard as it can be, it is very important to have discussions about what would happen to any minor children if both parents were to die.
A guardian can be appointed under the terms of a Will and this could be a family member or anyone else whom you feel is appropriate to look after your children.
If a guardian is not appointed and there is no surviving parent with parental responsibility, then the Court will decide who to appoint as a guardian.
My children are the beneficiaries of my estate which means that they can’t act as my Executors.
Your Executor is named in your Will and is personally responsible for dealing with your estate on death. Even if your children are the beneficiaries of your estate, there is no rule against naming them to be your Executors.
In some cases where children are inheriting their parent’s estate, it can be beneficial to appoint a friend or a professional Executor to act as an independent Executor instead of appointing the children themselves. As every family situation is different, it is entirely up to the Testator to decide who they would like to appoint.
The difficulties that we are currently facing have prompted many individuals to consider updating their wills and estate planning in order to get their affairs in order. In addition to understanding the truth behind some of the misconception surrounding Wills, it is also important to understand the other considerations surroundings wills and estate planning during the pandemic. If you would like to read further information in relation to this, then read our Coronavirus – Family Wealth: Wills and Estate Planning Considerations During the Pandemic article.
Our Family Wealth team are ready to assist you with your estate planning and any questions you may have in relation to your Will. If you would like to enquire about putting a Will in place, then please contact our Family Wealth team on 01865 781000 or email us and one of our lawyers will be in touch.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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