What Happens If I Die Without A Will?
A lot of people assume that when they die their home, savings and possessions will automatically pass to their next of kin – but sometimes the law is not that simple.
With no will you could be leaving your surviving spouse and children with complex legal problems which could lead to painful and divisive family arguments.
Also, today more people are remarrying. Die without a will and your estate could automatically pass to your second spouse and their offspring. Any children from your first family would receive nothing as of right.
Why Make A Will?
Despite all the warnings, a staggering 75 per cent of people die without having made plans for the future of their property or possessions.
Whatever the size of your estate – even if it’s a modest one – you should always leave a clear and legally binding statement of your wishes. Making a will is the only way of guaranteeing that your wishes are respected after you have passed away.
Make a will and you are free to leave your property and possessions to whoever you want. If you die ‘intestate’ (without a will) then all your assets will be divided up according to rules set out by the government.
The rules of intestacy are a ‘one size fits all’ way of dividing up property. These strict rules apply to everyone the same way – no matter what you would have wished for your friends and family. The solution is simple: make a legally binding will and you will not be subject to the rules of intestacy.
Also, by making a will you get to choose your executor(s) – the trusted person/people who will administer the terms of your will. They will gather all your assets, share them out among your chosen beneficiaries according to your wishes and pay any outstanding bills (such as Inheritance Tax).
If you die without appointing an executor then the court will appoint someone. It will usually be a family member – but it may not be the person you would have chosen.
We believe your will is one of the most important documents that you will ever sign and should be dealt with by specialist lawyers. There are important matters to consider including:
- provisions for your children
- appointing executors and trustees to deal with your assets
- the best structure for your will to minimise the amount of Inheritance Tax that will be payable on your estate
- what to do if you hold joint property
- what to do if you have a pension plan that pays death in service benefits.
Making a will gives you the power to make more detailed provisions for your loved ones, such as:
- deciding who looks after your children after you die
- bequeathing assets to your children after they reach a certain age
- making sure that your surviving spouse or partner has a roof over their head (while still ensuring that your children inherit some money)
- ensuring that any children from a previous marriage remain beneficiaries.
Having a will also enables you to make specific wishes for your funeral.
Why Use A Solicitor To Make A Will?
You’ve probably seen DIY wills on sale in shops. They claim to be quick and easy…but be careful! They can be a dangerous false economy.
A DIY will may sound like a quick shortcut but you could make a mistake which could force your beneficiaries to pay more Inheritance Tax. Or you could unwittingly render your will invalid – which could lead to expensive legal disputes.
An experienced wills solicitor can offer you specialist expertise to help you make the right choices to safeguard the future of your family. It need not be costly – and it could save you thousands of pounds in Inheritance Tax.
Your solicitor will help ensure that your will is worded the right – so that what is written is truly what you intend.
Coles Miller is regulated by the Solicitors Regulation Authority so you have the peace of mind that you are dealing with experts. We also have professional indemnity insurance – unlike unregulated will writers.
Members of Coles Miller’s Wills and Probate team have special qualifications. They are members of the Society of Trust and Estate Practitioners (STEP) – which requires an extra two years of study over and above normal legal qualifications. Some of our team are also accredited Solicitors for the Elderly.
Coles Miller is also accredited as Dementia Friendly Solicitors by the Alzheimer’s Society.
What Are Mirror Wills?
Mirror wills are a pair of wills. Each reflects the terms of the other so they are generally used for married couples, civil partnerships or cohabiting partners.
You don’t have to be married, in a partnership or a relationship. Any two people can make mirror wills together.
One person may wish to leave virtually everything to the other – and vice versa. So it makes sense to take them out at the same time to make the process easier. A pair of mirror wills is also cheaper than two separate single wills.
How Long Does The Process Take?
After you have met with us and told us your wishes, we will get a first draft of your will to you within seven days.
You then come in for a second meeting to let us know if any amendments are needed. Once you have approved the draft will, you can then sign in (witnessed by us) and your will is officially a legal document.
There may be come circumstances – such as a ‘deathbed will’ – where time is limited and speed is vital. Our solicitors can act quickly to help you.
Sometimes people going on holiday abroad want the reassurance of making or reviewing their wills. Some leave it until the last minute before calling us. It is possible to complete a will under these circumstances but we would always recommend planning ahead.
What Is Probate?
Probate is the legal process by which a court makes your will a legal public document so its terms can be carried out according to your last wishes.
For more information, see our Probate and Estates page.
Where Should I Keep My Will?
Your will is an important legal document and you should always keep it somewhere safe – but NOT in a bank safety deposit box.
That make sound counterintuitive but keeping your will in a bank safety deposit box may stop your family from seeing it after you have died. This is because the bank can’t open the box until probate has been granted…and that can’t happen without the will.
It is possible to lodge your will with the Probate Registry – but only you can take it back while you’re alive.
So where should you keep your will? Choose a place which is safest for you. We can store your will for you safely for free according to Solicitors Regulation Authority rules. We will happily provide you with copies to keep at home with your other important documents.
We always advise against keeping your original will at home, no matter how secure your safe is!
If – for any reason – your will cannot be found after you have died, then it is presumed in law that you have destroyed the will. In some circumstances it is possible to unravel this legal difficulty but the process is cumbersome and time-consuming.
It’s far better to play safe and to store your original will with your solicitor. Also, you should always let your executor know – in writing – where your will is kept.
How Many Copies Of My Will Should There Be?
Usually there will be several copies of your will: one each for you and your spouse plus a further copy that we keep safely for you. Some will writers charge extra for storing your will. We do not – we will store your will for free.
Some couples ask us for a fourth copy, perhaps for a child who has been named as an executor. We can produce this fourth copy for free as well.
How Do I Change My Will?
It is worth reviewing your will every few years just to make sure that it still matches your family circumstances and that your wishes remain the same.
Don’t simply make a will then forget about it. Times change quickly.
There are certain trigger events that should act as a spur for you to review and update your will:
- the arrival of new children or grandchildren
- marriage, divorce or remarriage
- someone named in your will dies before you do
- you want to change executors (if they die before you or are no longer suitable for the role).
In some cases you can amend your will using a codicil (an addition) but these are rare today. Most people now simply amend and replace their will.
Also, it is possible to change the will of someone who has already died using a deed of variation.
Are Wills Private Or Public?
Before probate your will is private. It becomes a public document once probate has been granted. Anyone can search through probate records (for people who died after 1858) online.
You can obtain a copy of a probate record online around 14 days after probate has been granted or by post within four weeks.
Wills And Trusts
You can set up a trust within your will for a variety of reasons – such as to protect assets.
Find out more here about how to set up a trust (the webpage includes information about Property Trust Wills which help you to reduce the impact of care home fees on your estate).
Who Should You Appoint As Executors And Trustees?
You must be certain that your executors are capable of carrying out all the duties expected of them under the law. Those responsibilities include:
- identifying and valuing your assets and your liabilities
- contacting (and checking the identities of) your chosen beneficiaries
- applying to the court for a Grant of Probate (confirming their authority to administer your estate)
- settling any Inheritance Tax liabilities that may be payable
- handling any Income Tax or Capital Gains Tax matters
- dealing with the administration of your estate by collecting the assets and settling all debts (including your funeral costs)
- ensuring that the remainder of your estate is paid to your chosen residuary beneficiaries in the correct proportions
- preparing accounts setting out the transactions in the estate for those beneficiaries.
Your trustees are legally responsible for:
- managing any trust that might arise in your will
- holding funds for children until the dates you have specified in your will and, in the meantime, investing the funds in accordance with advice obtained from a suitably qualified financial adviser.
Your executors and trustees have a legal duty to act carefully and properly. If your executors or trustees cause a loss to the funds under their control, they could be personally liable to make good the loss to your estate from their own money.
Contact our solicitors (request a call back) if you need their help as executors or trustees.
Can Wills Be Contested, Disputed Or Overturned?
Wills are now more likely to be contested than ever before. These legal wrangles – though not commonplace – are now happening more often.
There are various reasons for this. Increased publicity over celebrity will disputes has prompted more people to question why they were left out of their family wills or why they received less than they expected.
This is another good reason to ensure that you have drafted your will with the help of a solicitor who specialises in Wills and Probate.
View our disputed wills page for more information about who can contest a will, grounds for contesting a will and claims under the Inheritance Act.
Living Wills (Advance Decisions/Directives)
An advance decision (also known as a ‘living will’) enables a person to specify what actions should be taken on their behalf if they become unable to take decisions for themselves due to illness, old age or life-changing injuries.
Living wills are rare but are likely to become more common as dementia and other similar conditions become more prevalent in society. Sometimes they are known as advance (medical/healthcare) directives or personal directives.
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Contact Coles Miller Solicitors today for expert help with wills and probate. Request a call back.
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