06 July 2023

Myth busters: Misconceptions of Wills and probate

When someone passes away, knowing what to do next can be incredibly difficult. With emotions high, there are some common misconceptions we often hear that make the process seem even more daunting or confusing.

It is time to set the record straight. Solicitor Laura Campbell dispels the many myths of the Wills and probate process.

Myth 1: Common law husbands and wives

Cohabiting couples often refer to themselves as being in a common law marriage, when in reality, there is no such thing.

Contrary to popular belief, this is just a way to describe a couple who are living together. They do not have the same rights as a married couple.

Myth 2: Next of kin

Your “next of kin” is typically, but not always, a person’s closet relative. Being named  a person’s “next of kin”  may assist in some situations. However, if a person has passed away or lost capacity, the concept of “next of kin” has no legal standing.

It gives no legal right to deal with a person’s estate or to benefit from their estate. If a person has lost capacity, then their attorney can deal with their affairs. If a person has passed away, their personal representative will deal with their estate.

Myth 3: Marriage will not affect my Will

Marriage automatically revokes a Will, leaving it invalid. In order for a Will to remain valid after marriage, it must have been made "in contemplation of marriage”.

Myth 4: When I die, my debts will die with me

When a person passes away, their debts remain a liability of their estate.

The personal representative of that estate shall be responsible for settling any debts, prior to the administration of that estate.

Myth 5: I do not need to make a Will, as I have nothing to leave

Even if you do not consider your estate to be particularly valuable, leaving a Will can assist the person dealing with your estate when making decisions, such as making funeral arrangements.

If you have children, you can also nominate a guardian in your Will. Wills do not solely relate to finances.

Myth 6: I do not need a Lasting Power of Attorney (LPA) until I lose capacity

An LPA is a legal document that allows individuals to appoint attorneys to help them make decisions on their behalf relating to their property and finance and also to their health and welfare. If you lose capacity, your attorneys can legally make decisions for you and deal with your affairs. Once a person has lost capacity, they can no longer make an LPA; it is too late.  

If capacity has been lost prior to an LPA being made, an application to the Court of Protection will be required to ensure that another person can legally make decisions on your behalf and to manage your affairs. Whilst people are often put off making an LPA due to the cost involved, the reality is that the cost of making an application to the Court of Protection will be significantly more and which will be paid from your funds.

Furthermore, the application to the Court of Protection may take several months to conclude, resulting in a delay in a person being able to manage your affairs.

Myth 7: If I have been left out of a Will, there is nothing I can do

Depending on the circumstances, there may be a number of potential claims to bring. Firstly, challenges to the validity of Will can be brought if appropriate including those based on:

  • Lack of testamentary capacity (meaning the testator didn’t have the mental capacity to make the Will)

  • Undue influence

  • Fraud or forgery

  • Invalid execution

  • Lack of knowledge and approval

Secondly, depending on your relationship with the deceased, you may also be able to dispute a Will under the Inheritance Act (the Inheritance Provision for Family & Dependants Act 1975).

Final thoughts

If you are ever in doubt as to your legal position, it is recommended that you take specialist advice. Get in touch with our contentious probate solicitors to discuss your concerns.

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