Although the figures are getting better, there is still a large proportion of the adult population who do not have a will – it’s around two thirds. And this can cause major problems when they die because their estate may not be given to the person they would have wanted it to be given to.
It can be stressful for those left behind, and it can cause financial issues too.
So why is it that only one third of people in the UK have wills?
The main reason, a new study by NS&I has discovered, is that it’s because no one likes to talk about death. It’s still a big taboo. And that taboo means that people simply aren’t comfortable when it comes to discussing their own demise, or other people’s, and especially when it is linked to money or inheritance.
As well as not writing a will, these adults don’t have any plans at all for when they die. That includes not having plans for looking after the relatives they leave behind – both elderly and children. This is how scared the UK is of death; even if it going to affect others negatively, people would rather not think about it at all.
Around 46 percent of adults in the UK are not happy about discussing their death with their loved ones, and a third say that they won’t discuss it with anyone at all. They would just prefer not to think about it. Or they think they are too young to consider writing a will. The problem is, death can come at any time for anyone, and having a will in place ‘just in case’ will stop any potential arguments after death.
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.
An executor is always expected to act reasonably when it comes to dealing with someone’s will and estate. They must act in the best interests of the estate, and the beneficiaries named in the will. This involves a number of things including getting the best possible price for any property or assets that are sold. It also means that they should ensure that the death is registered correctly. If this is not done, there could be serious implications that affect many people, and their inheritances.
The estate must be calculated correctly as well. This is to make sure that, if any inheritance tax is due, it is paid on time, and at the correct figure. This needs to be done before any of the money and assets are distributed.
The death should also be ‘advertised’, for example it could be announced in a national newspaper. This is so that anyone who is not mentioned in the will but who is owed money by the estate can contact the executor to arrange for payment. These debts must be paid off before any beneficiaries can inherit. If this is not done, and someone makes a claim after the money has been distributed, the executor may be liable for the debt.
If someone disputes the will (ie, if they question whether the will is valid, or if they have evidence that there is a newer will, for example) then there could be further claims. Being executor is an important job with huge responsibility, and it is always worth getting independent legal advice if you take the job on, to prepare you.
It has long been thought that the final wishes of Alexander The Great of Greece have been lost to the mists of time. However, a London based expert on Alexander, David Grant, has allegedly discovered them – and they were hiding in plain sight for the last 2,000 years.
Not only does the will set out exactly what Alexander wanted to happen to his worldly possessions and his burial wishes, but it is also said to lay out future plans, specifically for what needed to happen in the Greek-Persian empire that he was building. By the age of 30, Alexander the Great (or Alexander III of Macedon as he was known at the time) had created one of the largest empires in the world. He was the stuff of legend, only his exploits were absolutely true.
It took Mr Grant a decade to finally find the will after a trail of clues that wouldn’t be out of place in a Hollywood movie, was followed. For many years, the final resting place of the will was dismissed as a story, but David Grant refused to believe that, and decided to test his theory. It turns out he was right.
A book entitled Alexander Romance was written in the 100 years after he died. Legend had always suggested that the will would be found at the end of this book, but all that had been discovered there was a pamphlet that had nothing to do with Alexander.
Or did it?
After a thorough investigation by Mr Grant, it turns out that this is exactly where the will had been all along! More about this remarkable story can be read in David Grant’s book, In Search Of The Lost Testament Of Alexander The Great.
The witnesses to a will are absolutely essential. Without them, the will is not valid, even if it is signed by the testator and correctly and completely filled in. Witnesses have been required to make a will valid since the government in the UK passed the Wills Act in 1837. It states that there must be two independent witnesses when a person signs their will. These witnesses must actually have seen the signature take place, and cannot sign after the fact. Their signature is proof that they have seen it happen.
There are certain rules that must be followed in order to ensure that the witnesses are suitable, and that they can make the will valid. Firstly, witnesses must be over 18 years old as only adult witnesses are allowed. Next, the witnesses cannot be members of your own family, and neither can they be beneficiaries in the will, in any way (including being married to a beneficiary). Other than that, you can choose anyone you want to witness your will for you. You could choose friends or work colleagues, people you know from a class, or anyone else.
By signing your will as a witness, the people you choose are not committing themselves to anything – it is not like signing a contract. The only thing the signature does is show the Probate Court that the will is valid.
For more information, please don’t hesitate to get in touch.
For many people, the items that are listed within a will are tangible. They are things like property, jewellery, money and so on. However, for a smaller set of people there will be many more intangible things that should be mentioned. These includes anything that has been written, produced, or created. This comes under the term ‘intellectual property’. It could be a song, the name of a brand, a design of a logo, a novel, and much more.
It might be that the item is actually of great value, but it mustn’t be forgotten that there are other layers of complications across these things that include patents, copyright, trademarks and similar. This can often be where the true value of a product lies, and it is important to understand what it being left, even if it may not look like anything at all.
Remember that copyright lasts for 70 years after the death of the person who created the work. After this time, the creation – song, novel etc – enters the public domain and can be shared and used however anyone wants. It is possible to bequeath the right to benefit from copyright. Alternatively, the item can be left to a gallery or museum, or to a person.
Patents last for up to 20 years after it is first filed. A patent is seen as personal property, and therefore it can certainly be bequeathed to someone. If you do hold a patent to something then you should include it in your will and write down what you want to happen to it. If it is to be left to someone then the patent office will require a copy of the death certificate and letters of administration so that the ownership can be updated.
What do you own that you didn’t realise could be bequeathed? Do you need to update your will after realising you have intellectual property? Please get in touch.
In April 2016 the world lost a musical icon. Prince died unexpectedly in his home in Minnesota. The problems regarding his estate began immediately since Prince (whose full name was Prince Rogers Nelson) had no will. This meant that his estate had to go through the intestacy rules, but Prince’s family is a spread out and complicated one, and so the entire process of portioning out the estate is still not complete.
The current problem stems from the fact that there are two lawyers who are attempting to represent Prince’s potential heirs, and the judge overseeing the case is refusing to appoint either one of them to the job. This is because there is disagreement between the remaining siblings as to who to use. The two lawyers – both very experienced in their field – effectively interviewed for the job of dealing with Prince’s estate recently, but the six siblings and half siblings of Prince are split over who to use. The judge has declared that if they cannot reach a consensus then he will work on a majority of four to two. But the issue is literally split down the middle.
Minnesota law means that Prince’s estate and assets should pass to his sister, Tyka Nelson, and his five half siblings equally because he had no children and his parents are dead. However, there have been a number of other claims from people who say that they are also half siblings of the singer, and until the claims are all looked at, the judge cannot – and will not – begin splitting the estate between the six who will definitely inherit something.
In UK law, you can leave whatever you want to whomever you want, assuming you own the asset in the first place. That means that if you want to leave money or property – or anything else – to your stepchildren, you are perfectly entitled to do so.
The problems start when there is no will. If there is no will then the estate will be distributed according to the laws of intestacy, and these laws are strict. There is a distinct list of people who will receive parts of the estate, and this list must be dealt with in order. The rules of intestacy do not, however, cover stepchildren, and this is important to bear in mind. Only a spouse, adopted child or blood relatives can inherit if there is no will.
And of course, even if you do have a will and you simply write that you want to leave everything to your children (or even siblings) this will not include stepchildren or stepbrothers and sisters. You will need to make a separate point for them.
Even if you have parental responsibility for a child, they still will not inherit unless they are your adopted or biological child. If they are stepchildren then the only way they will be able to inherit anything from your estate once you die is to write a will and ensure they are mentioned by name.
It is possible for a stepchild to challenge the rules of intestacy – or even a will. If they were financially dependent on the person who died, or if they had been treated like the person’s own child, they may have a claim to some of the estate. But this is a long-winded process and is expensive and distressing for everyone. It is easier by far to write a will that says what you want it to say.
Signing the wrong will. It sounds like a mistake that could never happen, but in reality it does. It is essential that the testator pays rigorous attention to what they are doing and specifically what they are signing. Witnesses also need to look at the documents. Their presence isn’t enough; they need to know exactly what they are witnessing, especially if there is some detail that they missed which becomes part of a contestation of the will!
If you think that this doesn’t happen, that it isn’t possible, then the case of Marley v Rawlings might change your mind.
Mr and Mrs Rawlings prepared their wills at the same time. They each left their estate to their surviving spouse, with other beneficiaries inheriting part of the estate if their spouse had already died. One of these beneficiaries was a Mr Marley who, although not related to the couple, was regarded as a member of the family.
Unfortunately, what no one, including the solicitor and the witnesses, noticed at the time, and for some time afterwards, was that Mr Rawlings had signed Mrs Rawlings’ will, and vice versa.
When Mrs Rawlings died, her part of the estate went straight to Mr Rawlings without any problems. The mistake regarding the signature was not picked up at that point. It wasn’t, in fact, until Mr Rawlings also died that the error was found.
What did it mean?
In short, it meant that Mr Rawlings’ will was made invalid, which in turn meant that his estate became subject to intestacy rules. Mr Marley, therefore, was no longer able to inherit his share, since he was not a blood relation of Mr Rawlings.
It was touch and go as to whether the will would be able to be rectified when Mr Marley contested it. This was not purely a clerical error, such as a typo, which would have been easy to fix. This was a will that was, in reality, unsigned, at least by the person to whom it related. In the end, the judge found that, since Mr Rawlings’ intentions were clear, the will could be changed to reflect that, and therefore Mr Marley could inherit his share.
The court case took time, money, and energy to resolve, all of which could have been avoided if the solicitor, the witnesses, and the testators themselves had taken the time to read what was being signed.
There are thousands of empty homes in the UK, and, according to recent research, around 90 percent of those homes are empty due to poorly managed or complicated probate. This has held the process up, meaning that although the previous owner of the property is now deceased, it cannot be sold until probate is completed. It is therefore left empty, and at the mercy of thieves and squatters. This in turn reduces the potential value of the house or flat, and causes my possible issues regarding the estate.
The main reason for homes being empty is that those dealing with the will of the deceased – the executors – have no understanding of the probate process. And why should they? Being an executor is not something that people are called upon to do every day. It is extremely important that, if you are an executor for someone’s estate, you ask for expert advice.
Another problem is that the home owner dies intestate – that is, without a will. With no final direction from the deceased, it can be difficult to arrange probate in a sufficiently quick time.
And what if beneficiaries can’t be found? This holds up proceedings as well. As can missing paperwork and family disputes around what should or should not happen.
It’s not just legal or tangible problems either. Sometimes an emotional attachment to a property can mean that it isn’t sold as quickly as it should be. Although completely understandable, and although of course emotions will come into the events that need to happen after someone dies, it is still important to think logically, and sell the home in a timely manner – even if it is a well-loved childhood home.