We all know what a will is, don’t we? Or do we? It may seem like an obvious thing, but when Macmillan Cancer Support carried out a survey and discovered that 98 percent of people couldn’t accurately describe what a will is actually for, it may be time to think again. Although most people understand that a will is about ensuring that your beneficiaries receive what you want them to receive, there are other factors, and this is what was missing from most explanations.
Those other factors include the fact that having a will means that you won’t die ‘intestate’, which makes things very difficult for your family members, and makes probate a much longer drawn out thing than it really should be. It also doesn’t take into account the fact that a will needs to be updated after a re-marriage, or a divorce. It is a little more complicated than some people imagine, but this should not mean that you shouldn’t write a will – if anything, it means that writing a will simplifies things after you have died.
Macmillan’s survey also said that around 70 percent of people like to plan ahead, but that only 40 percent of the UK’s adult population had actually written their will. This is most likely due to the fact that people still find talking about – or even thinking about – death a taboo, or a frightening prospect, and therefore they put it off. Unfortunately, when writing a will is so important, and when there are many companies and people who are happy to help in such an endeavour, not writing a will causes far more problems than writing one would ever do. A short time of feeling uncomfortable thinking about your own mortality is far better than leaving confusion and bad feeling for your family after you pass away.
The misunderstandings that come with the idea of will writing include thinking that you have to be over a certain age (40 is the one that most cite) before you can write one. This is borne out with evidence that shows that 80 percent of 18-34 year olds don’t have a will compared to just 32 percent of those over 55. Another confusion is the cost of will writing. It is often assumed that will writing is a very expensive process, when in reality the cost of usually a lot less than people think.
But the problem comes when people think wills are solely about money. And those who have very little in savings or no assets therefore don’t think that a will is relevant to them, or their families. This is not the case, however. Wills are about more than who gets what. They can also set out what the deceased would like to have happen after their death, and this is especially important if children are involved.
Sometimes, people may wish to give their children their inheritance before they die, rather than waiting for the inevitable to happen. The Inheritance Act does allow for this in some circumstances. Nobody wants to see the wealth that they have accumulated during their lives going to waste, but assuming that it will go to their children can be a mistake – with inheritance tax and the potential for needing it to be used to pay off creditors, there may be a lot less than you might think, and that can be a big shame.
Which is why it is sometimes a much better idea to give your children’s inheritance to them before you pass away, in the form of a gift. This can work particularly well if your estate would otherwise be worth more than £325,000 (or £650,000 if you take a spouse’s tax free limit) which is the threshold for having to pay inheritance tax. As long as you survive for seven years or more, there will be no tax to pay. If, however, you die within seven years of giving the gift, then it will be counted as part of your estate, and subject to a forty percent inheritance tax rate.
Giving your saved up wealth away earlier than you might otherwise have done is also better for your children. People are living much longer, with the numbers of those over the age of 90 in the UK having tripled since 1980. This means that people are having to wait much longer to receive their inheritance, and often receive it at a time in their lives where they don’t necessarily need it as mortgages are often already paid off and there is not much debt. If they were to receive it younger, in their 30s, perhaps, rather than in their 50s or 60s, it would be much more helpful, enabling more people to get a foot on the housing ladder, for example.
If the inheritance is not given at an earlier stage, then it can simply be added to savings, and this is then passed to their own children, but again, at a time when it is not going to do much good. Money can pass down through generations without ever being put to good use in this way, which is a waste and a shame.
If you are considering giving money away to your children while you are alive rather than leaving it in a will, then it is wise to speak to a financial planner. You don’t want to leave yourself short by giving away too much or not considering your own needs. Will you still want to go on holiday? Treat yourself to meals out? Make sure you can still enjoy your own life too.
Bereavement is a terrible time for everyone, but it is also a busy time, with many different things needing to come together in order for probate to be issued and for the deceased to have a funeral. It can be very easy to ignore or forget about all the legal and necessary things that need to be done at this time, but the longer they are left the harder everything will become. It will mean that probate will take longer, and that can be stressful and time consuming as well. It is particularly important to make things happen quickly if you – or someone else – was financially dependent on the deceased. You or they may be entitled to bereavement allowance, for example. At the very least, finances need to be sorted out to enable life to go on.
Probate can take many months to complete, depending on the complexity of the estate. The bereavement allowance can be up to £2,000, and is used to help those who were financially dependent on the deceased and who now will have a problem because of loss of or lack of finances.
The first thing that definitely needs to be done is to register the death. This is a relatively straightforward thing to do, and when it is completed the Grant of Probate can be issued, and the will can be executed. If the deceased died at home with no medical personnel present, then a doctor will be needed to provide a medical certificate showing cause of death. This can be taken to the register office (within five days) so that you can obtain a death certificate which is needed for everything else. If the deceased died at hospital or in a care home, the medical staff will usually be able to register the death for you.
The death certificate is required to have the body cremated or buried. You may wish to purchase additional copies of the death certificate as a variety of different organisations will need to see them, and rather than waiting for each one to send the certificate back, the executor can contact many of them at once, saving a lot of time.
Next you will want to look at funeral arrangements. The deceased may have had a pre-paid funeral plan, or perhaps they left instructions in their will or spoke about what they wanted when it came to their funeral. This will obviously make things easier for those who are arranging it, but if not there is no need to worry. Think about the person that they were, and you will be able to come up with the ideal funeral for them. Speak to the executors regarding money to pay for the funeral if there was no plan in place as they may be able to organise an advance from the estate.
Writing a will has been the same for centuries, but it hasn’t changed very much. And that was fine until modern technology came into play – and modern lives. But now, in the 21st century, will writing is out of date and needs to be modernised.
How could that happen?
One idea is that small errors that a judge can easily see are unintentional mistakes, should be overlooked rather than making the entire will invalid. At the moment, an error such as not being in the room when your witnesses sign the will can lead to big problems when it comes to probate. If things like this can be overlooked then the court’s time, and the beneficiaries’ inheritance, can be organised much better.
Another idea is that a will could be written via text, email, or perhaps even voicemail. There are many new and diverse ways to communicate these days, and it seems strange that currently none of them can be used to communicate what someone wants to do with their estate and body after they have died.
Executing a will is also something that always takes a lot of time, and is hard work for the person tasked with the job. If a will could be executed electronically then it would save a lot of time and worry for everyone involved. Documents and information could be passed within seconds rather than days or even weeks.
Or how about lowering the age that you are able to write a will to 16? At the moment, you have to be 18 to write a legally valid will, but lowering the age to 16 may enable young people to take more responsibility, and for those who are terminally ill to be able to make their own decisions about what will happen.
The rules that revolve around writing a will came into force – in the main – during the Victorian era when will writing became more regulated and had a legal status. However, a review by the Law Commission has concluded that these rules are behind the times, and many of them need to be updated to comply with modern living. The worry is that because these rules don’t seem to match up to how we live today, they could be one of the reasons why many people don’t write a will in the first place.
When you write a will, you must follow specific procedures in order for it to be seen as valid. If the rules that have been put in place are not followed, then your will may not be enforced, even if you have made your final wishes clear.
One of the main issues that the Law Commission found in the old rules around wills was the matter of mental capacity. When the term was created, it didn’t take into account illnesses such as dementia, which is changeable, giving the sufferer good days and bad days. Someone with early onset dementia, for example, may have problems with short term memory, but that does not mean that they do not fully understand what they want to do regarding their will. The law as it stands, however, prevents them from writing a will if they have been diagnosed with the disease, which can be problematic for them and their family, as well as highly frustrating.
Times have changed dramatically, and in this modern world it should be quick and easy to create a will that will be valid and lay out all the testator’s wishes. Electronic wills – something that the Law Commission is recommending become commonplace – will certainly help with this, but updated laws regarding medical issues that we now have a much better understanding off will be a great step forward.
A man named Stephen Jackson has been found to have stolen almost one million New Zealand dollars from his dying mother. The man actually sold his parents’ house whilst his mother was in the process of writing her will – even though that will said that Ivy Jackson wanted to split the property between her three children. However, by the time she died the house had already been sold and it was too late to do anything about it.
Stephen Jackson then took a further $250,000 from his mother’s bank account after she passed away.
Only one of Mr Jackson’s siblings was living at the time of their mother’s death, and the High Court in New Zealand found in favour of that sibling, Raymond Jackson. It was found that Stephen and his wife Linda owed almost $1.1 million, plus interest, to the estate of his dead mother.
But how could this have happened in the first place?
In January 2014, Ivy Jackson suffered a stroke and was unable to return to her home. Knowing that she was very unwell, she proceeded to write a will which, two days later, was completed. The will stated that she wanted the house to be sold, and for the proceeds from the sale to be shared between her children equally. Everything that was left over would go to Stephen and Linda Jackson.
However, because Stephen had been made power of attorney after his mother’s stroke, he had already made arrangements to sell the house.
Ivy Jackson died one year later after spending 12 months in a nursing home. Stephen said that he had had to sell the house in order to pay for the home (and the payment for it does seem to have come from the proceeds of the house sale). However, Ivy had enough put into savings to pay for these fees without the need to sell the house at that time. And, despite some of the money being used for the care home, almost $600,000 was still unaccounted for when the case went to court.
On top of that, it was discovered that Stephen Jackson used his status as power of attorney to withdraw around $300,000 from a joint account that had been held by his mother and father.
And, although they were both named as executors in Ivy’s will, neither Stephen nor Linda actually executed it, and instead continued to make withdrawals from a variety of different accounts.
The couple did not attend the hearing and they cannot be contacted, although it is thought that they have since moved to Queensland. The case is therefore ongoing.
When someone dies, unless family were told beforehand, or it is easy to find in the house, it can sometimes be difficult to know whether someone even had a will, let alone where it might be.
The problem is that there isn’t a central database of all the wills made in the UK. There is the Central Probate Registry, but it is not compulsory to enter the details of your will there, and not many people do. This might be because very few people are actually aware that it exists.
If you want to know about someone’s will for any reason, the first person to ask should be the one who has organised the funeral. They should at least be able to determine whether there is a will or not, which will aid you in your search. If there is a will, they may even be able to tell you what it consists of, but they are under no legal obligation to do this.
Once probate has been issued, the will itself becomes public. Once this is the case, you can apply to the probate registry to obtain a copy of the will. If you are unsure when probate is due to be given, you can register through a standing search at the probate registry. One registered, the search (which is set up in the person’s name, their address, and their date of death) lasts for 6 months. If probate has not been issued in that time, you will need to set up another search.
In some states in America (Alaska, Ohio, Arkansas, and North Dakota) it is possible to request ‘living probate’ to be carried out. It isn’t something that many people think about doing, and it isn’t absolutely necessary in most cases, but when it is done it ensures that the will is valid and correct before the testator dies.
The testator will be able to prove that they are in sound mind and body, and wrote the will by themselves, without any outside influences. This is useful if they believe there might be those who would choose to challenge the will after they die. By proving that the will was written exactly as the testator wanted it to be, there is then little chance that any kind of challenge can be made.
This is, however, an expensive option, and one that is not needed in the majority of cases. If there is a chance that someone will contest the will, and if doing so would create a lot of problems for many people, or hold time sensitive funds up for too long, then it could be something that some people would consider doing. And it’s not just about money either – contesting or challenging a will can cause huge family feuds and upsets. It could be that the testator wishes to avoid anything like that, and so organises a pre-death (or antemortem) probate review.
If you were to go down this route and then change your mind regarding who should benefit after you die, it is possible to change your will, or revoke it entirely. However, there will be a validated version on file, and therefore you must go to court in order to have that will destroyed to avoid any confusion. And, if you wish to go through the antemortem probate procedure for your second or subsequent wills, you would need to pay.