Legal advice: five common misconceptions about wills and estates

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Emily Harvard of Woodfines Solicitors examines wills and estates and dispels some myths and misconceptions about them.

1. If no prepaid funeral plan is in place, executors and/or family members will be required to pay for the funeral of the deceased.

It’s not true. The person arranging the funeral is responsible for paying the final funeral bill; however, this does not have to come out of their own pocket.

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

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

The funeral bill has the highest priority of all debt except for secured loans, such as a mortgage. Funeral directors and banks are generally accommodating in these situations, and most will arrange deferred payment if needed.

2. A formal “reading of the will” will take place.

It is not mandatory to have the will read to the family and friends of the deceased. Executors are responsible for managing the estate.

Beneficiaries are contacted in a timely manner and the estate will be distributed to them in accordance with the Will, once administration of the estate is complete.

Following the granting of probate, the will becomes a public document that anyone can consult and anyone can examine to learn more about the beneficiaries.

The executor has a duty to distribute the will according to his instructions, while always acting in the best interest of the estate and the beneficiaries. If an executor breaches this obligation, he may be held personally liable.

3. Marriage or civil partnership and divorce or dissolution have no effect on a will.

Marriage or civil partnership revokes a will because upon marriage or civil partnership, the legal status and position of an individual is automatically changed.

A will remains effective after marriage or civil partnership if the will was clearly drawn up with a view to a particular marriage or civil partnership, but not for someone (as yet unknown) in the future.

Similarly, divorce or dissolution has a significant impact on an individual’s will. Divorce or dissolution does not entirely revoke a will; however, a former spouse will no longer be able to benefit from a will as beneficiary, nor act as executor and/or trustee.

A divorced person will be treated as if they had died before their ex-spouse. This can have a serious effect on an estate and so it is important to ensure that any will is reviewed and appropriate estate tax advice is sought.

Emilie Havard
Emilie Havard

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

It’s wrong. Living together without being married or in a civil partnership means that you don’t have many rights in terms of finances, property and children.

Dying without a will automatically triggers the application and observance of the intestate rules, and they do not provide for cohabiting couples. To protect and provide for a partner, it would need to be included in a valid will or via a cohabitation agreement.

5. Renunciation as executor can be done verbally

An executor can only waive their rights and responsibilities as an executor by completing a formal waiver. This must be done before the executor deals with any part of the will or estate, for example, collecting or selling assets, which is known as interference.

Alternatively, if other executors are named in the will, the other executors can apply for a grant of probate with “reserved power” to any executor who does not wish to be directly involved.

This allows executors with reserved power to retain the power to act (upon application to the Probate Registry) as executor should a need or desire to do so arise in the future.

An executor can also ask lawyers to deal with the estate on their behalf. This will give them confidence that the estate has been administered properly.

It is important to remember that administering an estate is not just about distributing money and assets. It is important that the tax obligations of the estate are properly dealt with and that HMRC reporting requirements are met.

For example, estates with little or no assets may still be required to report to HMRC and pay tax. It is the executors who are responsible for the proper administration of the estate 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 customer team today who will be happy to help you.

Emily Harvard
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