Everyone highlights the importance of creating a Will to ensure your assets end up with the people of your choosing, but when was the last time you thought to review your Will?
Intestacies occur when the deceased did not leave a Will, or when there is a problem with their Will.
Over a lifetime, many things can occur that may mean that your Will is not as compatible as it once was or valid at all.
But what are the potential pitfalls and how can you avoid them?
What are the problems with intestacy?
Under the rules of intestacy, there is an strict hierarchy of who can inherit, and this can be complicated.
Intestacy only considers your blood relationships or legal marriages with another person and not the relationship you had with them. To illustrate this, take an example of an unmarried couple who have lived together for 20 years. They could want their entire estate to pass to each other, however if they do not leave a Will, their estate will automatically pass to their nearest living relative. This will be the cases even if our theoretical couple are estranged from their relatives.
If there are no living relatives left, your estate will pass to the Crown under ‘bona vacantia.’ To guarantee that those you wish to provide for get your estate, it is always best to make sure you have a valid Will in place.
Review Your Will If You Get Married or Divorced:
Upon marriage or entering a civil partnership, any previous Will you have made will automatically become invalid. This is because the assumption is that the person getting married would wish that their assets pass onto their spouse or civil partner.
One way around the above is to write a Will in contemplation of marriage to the other person. For this to work, you must know that you are going to be marrying a specific person and you must reference them by name, and you must make it clear that you intend for this Will to remain valid after the marriage.
This might be of particular importance if one or both partners have children from a previous relationship to ensure that these children remain provided for. Doing this will help make sure that updating the Wills is not forgotten in the excitement of the happy time, so is well worth considering!
Divorce and separation can also lead to intestacy. Once a divorce is finalised, anything bequeathed to your ex-spouse or civil partner will be rerouted to other beneficiaries. However, this will only be effective if there are other beneficiaries named in your Will who it is able to go to.
If you have separated or only got the Decree Nisi but die before the divorce has been formally completed, any provisions in your Will that benefit your spouse will still be valid. Given the amount of time taken to complete divorce proceedings, it may be worth revisiting your Will upon separating. It is also worth considering if you do wish to make a gift to your ex-spouse, even after a relationship has ended. If you do, once the divorce is finalised, these provisions will need to be rewritten into your Will.
Will Lacks Formalities:
For a Will to be valid, it must meet three criteria. These are:
- It must be in writing and signed by the testator.
- It appears that the testator intended to give effect to the Will.
- The signature was made in the presence of two or more independent witnesses who were present at the same time.
If any of these have not been done, the Will we be classed as invalid and your executors will either revert to a previous Will or your estate will fall under intestacy.
By drafting your Will using WT Solicitors, you can have the peace of mind of knowing that WT Solicitors have made a detailed note of your mental capacity to limit the chances of a potential beneficiary claiming that you did not understand or intend that you were making a new Will.
When taking instruction, WT Solicitors will go through the nature of making a Will, the effects of the Will and make you aware of those who have a claim to your estate. You can also be supported signing to ensure that your Will cannot be invalidated on a technicality.
Ineffective Beneficiaries:
It may well be that when you last visited your Will, you were good to go! But when did you last review your beneficiaries? Given this, here are some questions you should be asking yourself…
- Do you have a sole beneficiary (such as a spouse) that has predeceased you? If so, who should your estate go to now?
- Does your Will contain a residue clause? This is a clause that protects against a partial intestacy by ensuring that if any specific gifts under your Will fail, or if your estate assets change over time, then your assets can go to other beneficiaries instead.
In summary, it is always important to bare situational changes in mind even if you have already written a Will.
If you believe that any of these issues may be affecting your Will, it is well worth reviewing your will to make sure. Please get in touch if this is something our Will writing service may be able to assist with.
