There are several misconceptions people have about probate, estates and wills. Below are some of the most common.
1. My debts will all die with me
Not correct. Your executor(s) are responsible for discharging your debts and liabilities after you die. Debts are only written off if there are insufficient funds in your estate following the liquidation of your assets or in some limited circumstances such as a student loan balance owed at the date of death.
2. ‘Common law marriage’
If a person cohabits with a partner who does not have a will, it may be assumed that they will automatically inherit all of their assets when they die. This is incorrect. If you are unmarried, your partner receives nothing automatically from your estate under the Intestacy Rules in England & Wales. (Although they may in certain circumstances be able to bring a claim against your estate but there is no guarantee).
3. A will cannot be challenged
Some people wrongly believe that their will cannot be varied or challenged once they have died. There are several ways that wills can be challenged. There are no guarantees that the wishes set out in a will are always carried out. However, there are ways to reduce the risks of a claim being litigated. An experienced lawyer will be able to provide guidance on this point.
4. I do not own any property, so I do not need a will
A will can make it much easier for everything to be sorted out when you die. If you do not have a will everything that you own is shared out in the standard way defined by the Intestacy Rules – which often is not in the way that you might want. Even if you do not own much now, this may very well have changed at the time of your death and a will could also help to reduce the amount of Inheritance Tax that you pay. Writing a will is especially important if you have children or other family who depend on you financially.
5. Wills do not need to be reviewed
A will reflects your circumstances at the time it is made. So as your circumstances change, for example, if you marry, move home, have children, divorce or inherit you should review your will to see whether or not it still accurately reflects your circumstances and wishes.
6. Low cost is always good value
As with any service, you usually get what you pay for. Choosing on price alone might result in getting an acceptable job done, but is this enough? There is no point in having a will unless you are confident that it will work when the time comes. The quality of available will services can vary greatly as the will writing industry is unregulated in England & Wales. Some services may be ineffective or may not provide you with any recourse when things go wrong. Researching and selecting a law firm that you can trust will reassure you of the quality of service.
7. All executors named in a will are required to act
Named executors in a will are NOT obliged to act, instead they have the right to act should they wish to do so. An appointed executor can renounce permanently, or they can opt to have ‘power reserved,’ which allows the other executor(s) to obtain the grant of probate and they will only step in if required. Opting for ‘power reserved’ is often the case in an estate with executors that are not located close to each other.
8. Time limits do not apply
After assets are distributed out of an estate, it becomes much more difficult to recover them. If you have a claim against an estate or concerns about the validity of a will, it is especially important to act quickly in raising these issues and obtain specialist legal advice. In some cases, the relevant time limit can be as little as six months from the date of the grant of probate.