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If There's No Will, Is There a Way?
A death can leave families in turmoil, with everyone dealing with death in their own way.
A death with no will (dying intestate) can increase that angst, split families, and even leave no-one benefitting other than solicitors and the tax man.
And even if you have a will, there are some pitfalls that many aren’t aware of. These mean that a will may be invalid.
Here’s a quick run through of a few things to look out for:
1. Dying intestate
Dying intestate can leave all kinds of problems. Whilst things will legally be split differently according to whether you live in England, Scotland or Northern Ireland, someone will need to apply for ‘probate’ to sort things out. This is, or can be, a bureaucratic nightmare at a time when people are already stressed, and expensive if solicitors are needed.
So if you care about the people you’re leaving behind, and/or don’t want your money to go to government and/or legal professionals, sort that will out.
Consider leaving the whole lot to a charity if you really have no-one else to pass your belongings to.
2. Too young to die
Unfortunately no-one is ever too young to die. Be kind to friends and family and leave them a will, even if all you have is a small bank balance and a bicycle.
It doesn’t have to be expensive or complex, and if you don’t have a lot, a will kit may suffice (see below).
However, you must usually be at least 12 to leave a will in Scotland, and 18 in England and in Northern Ireland.
3. Will kits
Will kits are generally legally binding, but use the same format for everyone. They are best when there is only a small, simple inheritance to leave.
They are generally inadequate if the will covers either property or financial affairs abroad; if you need to make arrangements for someone’s long term care; or if you wish to disinherit a spouse or children/are in the midst of separation or divorce.
They are also easily contested, especially if there is any complexity or you have a history of mental illness.
Some will need to go to a notary to become legal.
4. Marriage
If you are not married or in a civil partnership, your surviving partner often has no automatic right to inherit.
If you were living together but then married later, any will you wrote before your marriage (changed status) may be invalid.
5. Living abroad
If you retire to, or head off to live, anywhere overseas, you will need to review your will carefully. Inheritance laws can be different and complex.
6. Witnesses
Unless a will is properly signed and witnessed, it’s invalid.
In England, Wales and Northern Ireland, two witnesses are required. Both witnesses need to be in the same room with you when you sign the will, and neither may benefit from the will.
In Scotland one witness is normally enough (and in certain, limited circumstances, a will that is not witnessed may even still be valid.)
7. Life changes
Big, life changing events affect wills, including:
· New children or grandchildren
· Marriage or divorce
· Deaths of partners, children or beneficiaries
· Buying a new house/moving home
After your will has been signed and witnessed, you cannot make amendments. An official alteration called a codicil is needed. As it has to be signed and witnessed (just like a will), making a new will might well be just as easy.
8. Invisible assets
It’s easy to remember the car, the house, the watch – they’re tangible and in front of us. However, it’s easy to forget less tangible assets like bank accounts, premium bonds, shares and savings or investment funds.
Remember too that people may not know you have a storage unit, allotment or memberships to clubs.
Try and make things easy regarding your online life as well – passwords, what you want to happen to your Facebook page…. The more information you leave, the easier you’ll make it for those left behind.
9. A Living Will
A Living Will states what you want to happen if you become incapable of making or communicating your own decisions.
An ‘advance decision' means you can refuse treatment, even if this decision could lead to your early death. It’s legally binding, except in Northern Ireland, and anyone caring for you must follow these instructions. (It will only be used if you lose capacity.)
It must be clear and refer to specific treatment, can’t be used to request specific treatments, and can’t be used to ask that your life be ended.
An advance decision does not have to be in writing unless you are refusing potentially life-sustaining treatment.
You should review it regularly, and can change it at any time. (Communicate, date and sign any changes).
An ‘advance statement of wishes’, by contrast, explains what you like, dislikes and what is important to make you comfortable. It should be considered by anyone who becomes involved your care, but it's not legally binding.
It might include information on your preferences to stay at home, in a care home or hospice. It might list specific dietary requirements and preferences. It might even be as detailed as preferences when it comes to showers or baths, sleeping arrangements, favourite clothes, religious beliefs, who you do – or don’t – want visits from.
In both cases , if you do write things down, give a copy to loved ones and anyone involved in your care, so that everyone knows how to move forward on your behalf. It also makes sense to ensure that your GP and medical team/carers know - they can include this information in your medical or care notes.
10. Pets
Pets often get forgotten in wills.
Cinnamon Trust volunteers help people keep their pets at home for as long as possible, for example by walking dogs or fostering during short stays in hospital. They even have a Pet Friendly Care Home Register of care homes that are happy to accept pets, and can take on lifetime care of your pet when you die.
Dogs Trust and Cats Protection can help rehome animals.
Make sure your will says what should happen to your pets.
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