Legal advice: Five common misconceptions about Wills and Probate

Last will and testament generic image

Emily Harvard at Woodfines Solicitors looks at Wills and Probate and dispels some myths and misconceptions about them.

1. If no pre-paid funeral plan is in place, the Executors and/or family members will have to pay for the deceased’s funeral.

This is not true. The person who arranges the funeral is responsible for paying the final funeral bill; however, this does not necessarily have to come from their own pocket.

If the deceased had money in a bank, even when the account is frozen, the bank would usually release funds to pay for their client’s funeral.

The bank will need to see the funeral director’s invoice together with the death certificate.

The funeral bill has the highest priority of all debts apart from secured loans, such as a mortgage. Funeral directors and banks are generally accommodating in these situations, and most will arrange a delayed payment if necessary.

2. A formal “Reading of the Will” will take place.

It is not compulsory to have the Will read to the family and friends of the deceased. The Executors of the Will are responsible for dealing with the estate.

The beneficiaries are contacted in due course and the estate will be distributed to them in accordance with the Will, once the administration of the estate is complete.

Following the granting of Probate, the Will becomes a public document that anyone can view, and which anyone can examine to learn about the beneficiaries.

The Executor has a duty to distribute the Will according to its instructions, while always acting in the best interests of the estate and the beneficiaries. If an Executor breaches this duty, he may be held personally liable.

3. Marriage or Civil Partnership and Divorce or Dissolution has no effect on a Will.

Marriage or civil partnership revokes a Will because upon marriage or civil partnership, an individual’s legal status and position is automatically changed.

A Will stays effective after marriage or civil partnership if the Will was clearly undertaken in contemplation of a particular marriage or civil partnership but not to someone (as yet unknown) in the future.

Similarly, divorce or dissolution has a significant impact on an individual’s Will. Divorce or dissolution will not fully revoke a Will; however, an ex-spouse will no longer be able to benefit from a Will as a Beneficiary, or act as an Executor and/or Trustee.

A divorcee will be treated as if they had pre-deceased their ex-spouse. This can have a serious effect on an estate and therefore it is important to ensure that any Will is revised, and appropriate Inheritance Tax advice is sought.

Emily Havard
Emily Havard

4. Cohabiting couples will be entitled to the finances, property and guardianship rights after a set period of time.

This is false. Living together without being married or being in a civil partnership means you do not have many rights around finances, property, and children.

Dying without a Will automatically causes the Intestacy Rules to be applied and followed, and they do not provide for cohabiting couples. To protect and provide for a partner, they would need to be included in a valid Will or via a cohabitation agreement.

5. Renouncing as an Executor can be done verbally

An Executor of a Will can only relinquish their Executor rights and responsibilities by completing a formal renunciation. This must be completed before the Executor attends to any part of the Will or estate, for example, collecting in or selling assets, which is known as intermeddling.

Alternatively, if other Executors are appointed in the Will, the other Executors may apply for a Grant of Probate with “power reserved” to any Executors who do not wish to be directly involved.

This allows those Executors with power reserved to retain the authority to act (by application to the Probate Registry) as an Executor if a need or desire to do so arose in the future.

An Executor is also able to instruct Solicitors to deal with the estate on their behalf. This will give them reassurance that the estate has been administered correctly.

It is important to remember that administering an estate does not just involve distributing the money and assets. It is important that the estate’s tax liabilities are correctly dealt with and HMRC’s reporting requirements are complied with.

For example, estates with little or no assets can still be required to report to HMRC and pay tax. It is the executors who are responsible to administer the estate correctly and who are personally liable.

If you have any questions about the above, or would like assistance with Wills, Lasting Powers of Attorney or Probate matters, please contact our Private Client team today who would be happy to assist you.

Emily Harvard
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