Straightforward Guide To Producing Your Own Will

Sixth Edition

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• Publisher: Straightforward Publishing Digital
• Year: 2012
• Print ISBN: 9781847162250
• eBook ISBN: 9781847162649
• Topic: Law
• Subtopic: Civil Law
• Index: Law

For anyone, the process of producing a will and ensuring that their affairs after death are catered for is a complex task. In addition, the process of probate and administration of estates is an area which many people do not understand. This book aims to demystify the whole area of wills and probate and provide invaluable information for the reader. The book is aimed, essentially, at the person who wishes to proceed without a solicitor.

Chapter 1

Producing a Will-Key Points

 

The main principle underlying any will is that, if you have possessions, or any other assets, then you need to organise a will that will ensure that chosen people benefit after your death.

In the majority of cases, a person’s affairs are relatively uncomplicated and should not involve the use of a solicitor.

There are certain basic rules to be followed in the formation of a will and if they are then it should be legally binding.

The only inhibiting factor on the disposal of your assets will be any tax liability following death, which will be dealt with later in this book. There are a number of other factors to consider, however:

• Age of person making a will

A will made by anyone under the age of eighteen, known as a minor, will not be valid unless that person is a member of the services (armed forces) and is on active service.

• Mental health considerations

A will formed by a person, who was insane at the time of writing, will not be valid. Mental illness in itself is not a barrier to creating a will, as long as proof can be shown that the person was not insane at the time of writing. Subsequent mental illness, following the formation of a will, will not be a barrier to a will’s validity.

• Definition of insanity

Insanity, or this particular condition, will normally apply to anyone certified as such and detained in a mental institution. In addition, the Mental Health Act covers those in “a state of arrested or incomplete development of mind which includes sub-normality of intelligence and is of such a nature or degree that the patient is incapable of living an independent life or guarding against serious exploitation.

In any situation where there is doubt as to a persons capabilities then it is always best to have any will validated by an expert. This applies to anyone, not just those classified as insane.

The main point of any will is that, in the final analysis, a court would have to be satisfied that the contents of the will are genuine, there has not been any attempt whatsoever to alter the contents or to influence that persons mind. The person writing the will must have fashioned its contents with no outside interference.

Unfortunately, the history of the production of people’s last will and testament is littered with greedy and unscrupulous persons who wish to gain from another’s demise. It is necessary to be careful!

The Main Reasons for Making a Will

The main reason for making a will is to ensure that you make the choice as to who you leave your possessions to, and not the state. You can also impose any specific conditions you want in your will. For example, you can impose age conditions or conditions relating to the need to perform certain duties before benefiting.

If you do not make a will, or your will is invalid then, on your death, the law of intestacy will apply to the disposal of your estate. You will have had no say and certain criteria are applied by the state, which will take responsibility.

In the circumstances described above, after costs such as funeral and administration of other aspects of death, an order of preference is established.

The law of intestacy

If a person dies without leaving a will or without leaving a valid will, the laws of intestacy apply. The law of intestacy rests on the question of: who survived the deceased?

If there is a lawful spouse or civil partner and the deceased died leaving children then the spouse receives the first £250,000 for dates of death after February 1^st 2009 in respect of assets solely in the deceased’s name plus a life interest in half of the remaining capital, children receive half remaining capital, then on the death of the spouse/civil partner the children receive the remaining capital.

If there is a lawful spouse/civil partner and the deceased died leaving no children, the spouse receives the first £450,000 for dates of death after February 1^st 2009 in respect of assets solely in the deceased’s name plus half of the remaining capital. The remaining half of the capital goes to parent(s) if any, if not then to brother/sister of whole blood and issue of predeceased brother/sister of the whole blood.

If there are children, but no spouse or civil partner, everything goes to the children in equal shares.

If there are parent(s) but no spouse or civil partner or children then everything goes to parents in equal shares.

If there are brothers or sisters, but no spouse or civil partner, or children or parents everything goes to brothers and sisters of the whole blood equally.

If there are no brothers or sisters of the whole blood, then all goes to brothers and sisters of the half blood equally.

If there are grandparents, but no spouse or civil partner, or children or parents, or brothers and sisters everything goes to the grandparents equally.

If there are uncles and aunts, but no spouse or civil partner, or children or parents, or brothers or sisters or grandparents, then everything goes to uncles and aunts of the whole blood equally.

If there are no uncles and aunts of the whole blood, then all goes to uncles and aunts of the half blood equally.

If there is no spouse or civil partner and no relatives in any of the categories shown above then everything goes to the Crown.

A spouse is a person who was legally married to the deceased when he or she died.

A civil partner is someone who was in a registered civil partnership with the deceased when he or she died. It doesn’t include people simply living together as unmarried partners or as common law husband and wife.

The term children includes children born in or out of wedlock and legally adopted children; it also includes adult sons and daughters. It does not, however, include stepchildren.

Brothers and sisters of the whole blood have the same mother and father. Brothers and sisters of the half blood (more commonly referred to as half brothers and sisters) have just one parent in common.

Uncles and aunts of the whole blood are brothers and sisters of the whole blood of the deceased’s father or mother.

Uncles and aunts of the half blood are brothers and sisters of the half blood of the deceased’s father or mother.

It is important to note that if any of the deceased children die before him, and leave children of their own (that is grandchildren of the deceased) then those grandchildren between them take the share that their mother or father would have taken if he or she had been alive. This also applies to brothers and sisters and uncles and aunts of the deceased who have children – if any of them dies before the deceased, the share that he or she would have had if he or she were still alive, goes to his or her children between them.

The principle applies through successive generations – for example a great grandchild will take a share of the estate if his father and his grandfather (who were respectively the grandson and son of the deceased) both died before the deceased.

It is important to note that if any of the following situations apply to you, or if you are in any doubt whatsoever, you should seek legal advice before distributing the estate of a person who has died without leaving a will:

• The deceased died before 4^th of April 1988

• Anyone entitled to a share of the estate is under 18

• Someone died before the deceased and the share he or she would have had goes to his or her children instead

• The spouse/civil partner dies within 28 days of the deceased.

A spouse or civil partner must outlive the deceased by 28 days before they become entitled to any share of the estate.

An ex-wife or civil partner (who was legally divorced from the deceased or whose civil partnership with the deceased was dissolved before the date of death) gets nothing from the estate under the rules of intestacy, but he/she may be able to make a claim under the inheritance (Provision for Family and Dependants) Act 1975, through the courts. Legal advice should be sought if making such a claim.

Anyone who is under 18 (except a spouse or civil partner of the deceased) does not get his or her share of the estate until he or she become 18, or marries under that age. It must be held on trust for him or her until he or she becomes 18 or gets married.

Apart from the spouse or civil partner of the deceased, only blood relatives, and those related by legal adoption, are entitled to share in the estate. Anyone else who is related through marriage and not by blood is not entitled to a share in the estate.

If anyone who is entitled to a share of the estate dies after the deceased but before the estate is distributed, his or her share forms part of his or her own estate and is distributed under the terms of his or her will or intestacy.

Great uncles and great aunts of the deceased (that is brothers and sisters of his or her grandparents) and their children are not entitled to a share in the estate.

Chapter 2

When to Produce a Will

It is essential that you make a will as soon as possible. If you leave it, there is a chance that you may never get round to doing it and may be reliant upon the state doing it for you. There is also the chance that you will leave a situation where people start to contest your possessions, fight amongst each other and fall out.

There are many things to consider when you decide to produce a will. As a person gets older, chances are that he or she will become wealthier. Savings grow, endowments increase, insurance policies become more valuable, property is purchased and so on. A bank balance in itself is no indicator of worth, as there are many other elements which add up to wealth.

Changes in personal circumstances often justify the need to make a will.

• Ownership of property

• Children

• Marriage or remarriage

• Employment

• Illness

• Divorce and separation

• Increase in personal wealth, such as an inheritance

Ownership of property

Ownership of property usually implies a mortgage. If you are wise it will also imply life insurance to at least the value of the property. It is very prudent to make a will which specifies exactly to whom the property will be left. As we have seen, the law of intestacy provides for the decision if you do not have a will.

Children

As we have seen, under the law of intestacy, any children you have will benefit after your death. However, it is very sensible, under a will, to specify how and when they will benefit. It could be that you may let someone else make that decision later on. Whatever, you should make it very clear in your will.

Marriage or remarriage

The most important point to remember is that marriage or remarriage will automatically revoke the provisions of any former will, although this is not the case in Scotland. Therefore, when marrying you should make certain that your will is up to date and that you have altered the provisions. In short, you should amend your will, or produce a new will in order to outline clearly what you want your new partner to have.

Employment

You should be very aware that certain types of employment carry greater risks than others. This will necessitate producing a will as soon as possible as if you are in a high-risk category then you need to ensure that those nearest you are catered for.

Illness

Illness is something that none of us want b...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• 1. Producing a Will – Key Points
• 2. When to produce a Will
• 3. Making Provisions in Your Will
• 4. The Correct Form of Will
• 5. The Contents of the Will
• 6. The Intervention of the Courts
• 7. Wills and Taxation
• 8. Scottish Wills
• 9. Wills in Northern Ireland
• 10. The Serviceman’s Will
• 11. Probate Generally
• 12. Administering Estates
• 13.Applying For Probate
• 14. The Distribution of the Estate
• Glossary of terms
• Useful Addresses
• Appendix 1-Example of Administration accounts
• Appendix 2-Example forms to be used in probate
• Index