During meetings with clients I often come across commonly held misconceptions about Wills which this blog will attempt to dispel.
Myth 1 – Executors cannot be beneficiaries of my Will
You can appoint between 1 and 4 executors to administer your estate and there is no restriction on the individual(s) appointed as executor(s) also receiving a benefit from your Will. People often choose to appoint their spouse or civil partner in this role despite their spouse/civil partner, in some cases, being the sole beneficiary of the estate.
Myth 2 – If I have a valid Will my executors will not need to apply for probate
This is not necessarily true. Most banks and financial institutions will be willing to deal with up to £5000 worth of assets without legal proof and in some cases it is possible to close a bank account where larger sums are involved. Where the sums exceed the sum of £5000, or where the deceased owned property in their sole name or as tenants in common with another person, it likely that a Grant of Probate will need to be applied for.
Myth 3 – My debts will die with me
Unfortunately this is a myth. Any debts that you leave when you die will need to be paid from estate funds. Your estate will be considered solvent if you have sufficient assets to settle testamentary expenses, for your funeral and tax and debts. Once these have been paid the remainder of your estate can be distributed in accordance with the wishes expressed in your Will.
Conversely, if your estate is insolvent and there are insufficient assets to pay in full all your testamentary expenses, funeral, tax and other debts, then your creditors become entitled, in a certain order, to your estate and some or all may only receive a partial or pro-rata payment. This is likely to mean that any legacies you leave to friends/family will not take effect as there will be insufficient funds to pay these.
Myth 4 - I don’t need to make a Will because I’m married so my spouse will receive my entire estate when I die anyway
This is not necessarily true and depends on your net worth when you die. There are strict rules, called the intestacy rules, which must be followed when an individual dies without leaving a valid will.
For example, if your estate exceeds £250,000 and you have children (or £450,000 and you do not have children), the first £250,000 or £450,000 will pass to your surviving spouse or civil partner absolutely. Over and above this, the survivor will be entitled to the following:
• Your personal effects; and
• A life interest in half of the estate that remains following payment of the £250,000/£450,000 to your spouse or civil partner.
Your children (or other wider family members) will receive the other half of that estate which remains following payment of the statutory legacy.
Myth 5 - If I have a power of attorney, my attorneys will deal with my estate after my death
The provisions of your Will are only valid when you die whereas a lasting power of attorney only permits your attorneys to manage your affairs during your lifetime and ceases on your death.
Lasting powers of attorney are protection documents that you should put in place to ensure that your attorneys can step in and manage your financial affairs on the loss of mental capacity. If you lose mental capacity to manage your financial affairs and do not have a lasting power of attorney the only option will be for someone to apply to the Court of Protection for a Deputyship order to be granted for that person to manage your affairs. The Court process is expensive and time consuming and the person the Court may appoint a Deputy who you would not have chosen to fulfil this role had you had capacity.
It is also possible to make a lasting power of attorney in relation to your health and welfare to be used in the event that you lose mental capacity and cannot make such decisions yourself.
Myth 6 - If I have a Will, my executors can assist me with my financial affairs during my lifetime
As your Will is only relevant when you die it does not give your executors authority to assist with your financial affairs during your lifetime. It is therefore important to consider putting a property and affairs lasting power of attorney in place during your lifetime.
Myth 7 - Making a Will is morbid and isn’t something that I need to think about until old age
Making a Will need not be a stressful or morbid experience. At Clarion we pride ourselves on ensuring that we provide sound legal advice whilst being friendly and approachable. We appreciate that clients often find it difficult to discuss personal matters and attempt to put clients at ease.
For further information, or if you would like to discuss preparing a Will or lasting powers of attorney, please contact Stephanie Parish on 0113 336 3355 or via email at firstname.lastname@example.org
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.