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Wills and Probate

Considering your own mortality is a difficult concept and can result in people not making a Will since they find the idea too depressing. However, ensuring that you have a valid Will not only protects your wishes but also the future of your loved ones during what is undoubtedly a very stressful time. It is not just the elderly that should make sure that they have a valid Will, most adults would benefit from having one. If a person dies without having a valid Will, the rules of intestacy then have to be followed on how their assets and wealth will be divided. This may not result in the outcome that the deceased wished for and in fact, can cause family issues. Here we look at the key issues surrounding Wills and what happens during probate.

When should you get a Will?

It is wrong to assume you don’t need a Will because you are young and healthy or you don’t have any dependents. Any adult should have a valid Will in place to make sure that their wishes are honoured. Rights over property can be affected by the death of an owner. For example, where the owners are not married and own the house as tenants in common, the surviving owner does not inherit the deceased’s share of the property, this would pass instead to his next of kin. So, if a cohabiting couple in their 20s have this arrangement and one of them dies, the other could theoretically end up sharing (and living) with their deceased’s partner’s parents. This illustrates the importance of everyone having a valid Will.

What are the requirements for a valid Will?

The law aims to protect the wishes of the deceased. It is important to make sure that a Will is valid so that the content will be followed. It is possible to use DIY kits to create a Will. Although these can be cheaper than using a solicitor, if done incorrectly they can be held to be invalid creating legal expenses to rectify the issue or possibly even the situation where the rules of intestacy are enforced and the wishes of the deceased are not adhered to.

A valid Will must satisfy the following requirements:

  • The Will must be in writing.
  • It has to be signed in the presence of two witnesses and cannot be a beneficiary or married to a beneficiary.
  • The person that the Will relates to has to be over 18 years in age.
  • They must be of sound mind.
  • They must have entered into the Will freely without any duress.

Unfortunately, issues surrounding inheritance can become contentious and so it is vitally important to make sure you have taken expert legal advice from lawyers who understand the complexities of Wills and probate law in order to protect your wishes through a valid Will.

Can you change or destroy a Will?

Yes, this is not only possible but likely to be necessary depending on when you make your Will. Any changes to your circumstances should be reviewed to determine if you need to amend your Will or create a new one. Events such as marriage, buying a home with someone, having children, remarriage and the death of a close relative can all affect your Will and need to be considered carefully since it is likely to result in you need to make changes.

Where the Will only needs an amendment then this can be done by adding a codicil, which must be signed and witnessed in the same way as the Will to be legally valid.

Where a new Will is required, the old Will must be destroyed and the new Will needs to state that it replaces any previous Wills. It is important where circumstances change to find out what this does to your Will. If a couple divorce then this does not invalidate the Will. Instead, the ex-partner is regarded in the same way as if they had died on the date of the divorce and the assets are distributed accordingly. It is therefore important to have a new Will drawn up to override the previous one.

An important life change in inheritance law is marriage, which immediately voids any existing Will. This is a very important time to ensure you have a new Will drawn up to cover your wishes. In cases of remarriage, this can be particularly important where there are possibly children from different relationships prior to the marriage.

It is possible for people to challenge a Will if they think that it does not accurately represent the wishes of the deceased or for any other reason that could invalidate it (such as it was signed under duress or the person lack the necessary mental capacity). This is why it is very important to have your Will drawn up by a specialist family law who can ensure that it is valid.

What is Probate?

Probate is the process of administrating the estate of a deceased person. The Will states the executors, who are the people that will distribute the assets to the beneficiaries. Any outstanding debts and liabilities are settled by the executor. The solicitor who drafted the Will can be the executor, as can family members.

To start the process of probate, the executor must apply for a Grant of Probate, which is a legal document allowing them to deal with the assets and property of the deceased. The only person that can apply for this is the Executor of the Will. Where the deceased did not have a valid Will then the process will have to be completed following the intestate rules and this will state who has to apply to administer the estate. The executor also has to complete an inheritance tax return and pay any outstanding tax.

Once the executor receives the Grant of Probate, they must first pay any debts of the deceased that are outstanding and then will distribute the remainder of the estate according to the deceased’s wishes as detailed in the Will. Probate will generally take about a year, but where disputes arise this can delay matters.

Contact our Specialist Wills and Probate Solicitors Bradford Today

Wills and Probate Law can be a complicated area of Law and our expert lawyers can advise and guide you through the whole process to ensure that your wishes are correctly recorded in a legally valid Will and to assist with a smooth probate process.

Call us on 01274 350 546 or fill out our online enquiry form.

Enquire now

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