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A Will is a legal document which takes effect on death. A Will does not affect how you deal with your assets in the meantime: you can still buy, sell or give away your assets as you choose. That said, if you specifically gift an item in your Will and no longer own it on your death that gift would fail so some degree of caution is required in this regard.
A Will can be revoked by you at any time so long as you have mental capacity to do so and is automatically revoked on marriage unless it has been made in contemplation of marriage.
How an estate is dealt with when a person dies without leaving a valid Will (known as an intestacy/dying intestate) will substantially depend on their individual circumstances. Married couples often assume that their entire estates will automatically pass to the survivor of them but this is not necessarily the case. For more information see the intestacy flowchart here.
The consequences of passing away without leaving a valid Will can be particularly awful if a married couple die within a short space of time to one another. Where a married couple each have their own children from an earlier relationship, for example, their estates would pass to the children of the second person to die via the intestacy rules (the law which governs who should inherit an estate if there is no valid Will), excluding the children of the first person to die which is often not what is intended!
Whilst you do not need a lawyer to create a valid Will we do strongly recommended that you take legal advice. There are a number of things which can easily go wrong when a Will is written and executed without the involvement of a suitably qualified lawyer. There are various issues to consider when making a Will in order to ensure it is valid and drafted in the most appropriate way:
Some of these issues, if not correctly dealt with, can lead to a Will being challenged either in whole or in part resulting in disproportionately high costs and may cause long-lasting family feuds.
It is important that you consider what assets you own and what liabilities you owe (known as your estate) and who you might want to leave your estate to (“Beneficiaries”). You also need to give some thought as to who you would like to appoint as your Executors (the people responsible for dealing with the administration of your estate). If you have infant children it is really important to think about who you would want to look after them (known as Guardians).
You should review your Will at regular intervals, at least every 5 years, to ensure it still reflects your wishes and that it is still drafted in the most appropriate way bearing in mind any changes in the law which may have occurred in the meantime. It is important for you to review your Will when there is a change in circumstances such as the birth or death of a family member.
Wills can be amended by creating a valid Codicil, a document changing one or more clauses within a Will or adding one or more clauses to a Will. In order to be valid a Codicil has the same requirements as a Will.
Wills are revoked automatically on marriage unless they are made in contemplation of marriage. There are a number of other ways you can revoke a Will but you must have the necessary mental capacity to do so which not only requires an understanding of the revocation itself but also an understanding of the Intestacy Rules (the law governing the distribution of the estate of a person who dies without a Will). Before revoking a valid Will it is always best to see the advice of a lawyer to understand how to go about it and the consequences of revocation.
This question has become more frequent in the last few years, typically with people living longer and with complex family structures becoming ever more common. Often couples want to ensure the survivor of them is well provided for whilst protecting the capital of their estates for their children, grandchildren or other family members. We can ensure the capital of the estate of the first person to die is protected against a number of possible scenarios including marriage/remarriage of the survivor, financial difficulties of the survivor or family disputes between the survivor and the intended ultimate Beneficiaries which might otherwise result in them being disinherited.
There are a number of different structures we can recommend for inclusion within a Will depending on the individual circumstances, all of which have their own benefits and drawbacks which we would be happy to discuss with you.
For further information about wills and probate, get in touch with our solicitors in Alconbury, Peterborough, Spalding, Nottingham or Birmingham.
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