Coronavirus has triggered a spike in the number of Wills being made, so we’ve debunked some common myths to make your Will-making experience easier
You both need to make a Will if you're married
Even if you intend for the terms of your Wills to be identical or nearly identical, you both need to make a Will. These are commonly called 'Mirror Wills'.
Marriage automatically invalidates a Will, but divorce doesn’t
In England and Wales, marriage automatically revokes an existing Will that was in place by either person. Following marriage, if either party doesn’t make another Will and later dies, their estate will be distributed in accordance with intestacy rules. These are a set of rules which determine who will benefit from an estate using common guidelines.
By contrast, divorce doesn’t automatically revoke an existing Will. The Will remains valid. However, if an existing Will is in place, divorce removes the spouse as an executor. Plus, any gifts to a former spouse in the Will would be invalid.
A Lasting Power of Attorney expires when you die
A Lasting Power of Attorney means you can appoint a person or persons to make decisions on your behalf. There are two types of Lasting Power of Attorney: the first covers decisions about your property and financial affairs and the second covers decisions about your health and welfare. A Lasting Power of Attorney expires when you die (and a Will takes effect instead).
Your executors are then responsible for the administration of your estate.
Having a Will doesn’t determine if you need a Grant of Probate
A Grant of Probate application is made by the Executor(s) of an estate and gives them the legal authority to deal with the person’s estate. Whether a Grant of Probate is needed is not determined by the fact that the individual had a Will. If the deceased had a Will, a Grant of Probate is applied for by the Executor(s). If he or she didn’t have a Will, a Grant of Letters of Administration is applied for by the Administrator(s). Whether a Grant of Probate is needed depends upon the assets which form part of the estate.
Debts don’t die upon death
Debts don’t automatically vanish when someone dies. The estate of the deceased person is responsible for any debts that are owed. The assets which form part of their estate (such as property, savings, investments, shares) will be used to pay any debts outstanding before the estate is distributed to benefactors. This applies to the vast majority of debts left by the deceased.
If the value of the debts is greater than the value of the assets in an estate, an estate is deemed insolvent. Debts then need to be paid in a specific order and great care should be taken in administering and distributing the estate.
Assets don’t automatically pass to the survivor of a cohabiting couple
Contrary to popular belief, there’s no such thing as a common law spouse. If you’re cohabiting but not married, your assets won’t automatically pass to your partner upon your death. This will depend on the provisions of any Will and also the ownership of your assets.
Get in touch
For help with any of the above, or with any aspect of making or amending a Will, contact our Probate Solicitor Danielle Sakseide.
