One of a few good things to have come out of the pandemic is that people’s minds have focused on the importance of family, the value of personal relationships and the desire to take care of each other.

 

People have been forced to face the reality of their own mortality, which is no bad thing when it comes to future planning. Just the idea of having a conversation with one’s family about their inheritance is often enough to put anyone off having the conversation at all. However, if you leave it too long it may be too late to make a difference. With these planning matters it is vital to have these awkward conversations and include your family in the discussions from the outset. Having an open honest dialogue about these things can save time and money in the long run.

 

Everyone should make sure their Will is up to date, and not delay this, or put it to the bottom of the to do list. In these unusual times people’s circumstances are changing all the time – divorce and probate activities are massively on the rise. But did you know that marriage revokes an existing Will unless the Will was written in full anticipation of the marriage, whereas a divorce doesn’t entirely revoke an existing Will? 

 

Take a look at Adam’s story below and how it could be relevant to your situation:

 

  • Adam has already made a single Will (for himself). He then marries for the first time (or remarries). It is not widely known that such a Will would be automatically revoked on the first or subsequent marriage. This means that the Will becomes null and void. So it is vital to write a new Will once married to ensure the new legal ownership of assets is considered properly.

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  • If on marrying Adam does not want change his Will, it could have unintended consequences on his subsequent death. This is because on his death the law will treat him as having died intestate (without a Will) and the 100-year-old intestacy laws would then come into effect. You can see these in action for yourself here: https://www.gov.uk/inherits-someone-dies-without-will

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  • Let us assume that in the original Will Adam had left all of his assets to his children from the first marriage at the age of 21 or 25 (when they would be deemed to be more mature and better able to handle potentially large sums of money). In all likelihood there would be no intention to change the Will on the 2nd marriage as Adam would likely still want his children to inherit the assets.

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  • Let us also assume that at the date of Adam’s death the children were all under 18. Because the Will would be revoked under the intestacy laws, the new spouse would inherit all personal effects, the first £270,000 of the deceased’s assets and one half of the remainder of the assets. The children would inherit the other half but only at the age of 18 with there being no scope to extend the age of inheritance to 21 or 25. As a result Adam’s wishes in the original Will would have been thwarted and the children would inherit far less than was originally intended.

     

    Of course it may well be that Adam may want to review the Will at the time of marriage but this is by no means certain. The advice to Adam in this situation is to do a new affirmatory Will at the time of the marriage to ensure that the above situation can be avoided.

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  • There is one exception which will preserve a Will and avoid the need to make a new Will. This is by inclusion of a clause confirming that the Will is not to be revoked by the future marriage but the future spouse must be named in the Will.

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    So it is fundamental and important that if you have children, are married, divorced or re-married you look to ensure your Will is up to date and reflects your wishes. Now is the time to dust off the Will and look to see if it is fit for purpose. We can ensure this is checked to make sure it reflects your requirements, and then advise you accordingly on what changes may be needed. By not having a Will in place, you are leaving things to chance in probate. The whole process can be a nightmare if the deceased hasn’t set out things nice and clear for those left behind.

     

     

    Probate is the legal right to deal with somebody’s estate after they have died. It is vital that you appoint your own trustees to ensure your wishes are carried out. Help your family or nominated executor by keeping a detailed account of everything. This includes any gifts of money you have made over the past 7 years. Your family members will be thankful to be able to find this information easily, so best keep such details together with your Will.

     

    Here is some guidance we have put together to ensure the process goes as smoothly as possible during this difficult time:

     

      1. You need to apply for a grant of probate to get authority to value the assets of the person who has passed away. This will help you value their estate and work out how much inheritance tax you or the beneficiaries have to pay. The process to receive your grant of probate can take 4-8 weeks, so we recommend you try and do this as soon as possible.

     

      2. Even if you had a Lasting Power of Attorney on the person’s assets before, it only lasts whilst the person is alive, once they pass away you will no longer have authority to access information and will have to apply for probate.

     

      3. Try to get lots of copies of the death certificate and grant of probate. Many companies will want to see original certified copies of the documents before sending you final valuations.

     

      4. The deadline for the payment of Inheritance Tax is 6 months after the date of death. After this date there is a 2.6% interest charge. There is also a £100 penalty for any late submissions after 12 months.

     

    Planning for death before you die is the best plan you can put in place for those left behind. It can be a real minefield of rules and regulations, so it is always best to ensure you have an up to date Will at all times and where relevant (either in older age, or if you are travelling a lot) a Lasting Power of Attorney.

    If you would like to discuss your Will please get in touch, we have a team of qualified Will writers at Evolution who would be happy to help.