Common misconceptions about Wills and Probate

The legalities surrounding inheritance are often complex and naturally there are various misconceptions that people have around wills and probate – you should beware not to get caught up in them.

Below are some of the most common misconceptions:

Your spouse will inherit everything on your death

Statistics show that less than half of the adult population in the UK have a will in place. If you die without making a will, then the Rules of Intestacy will govern who inherits your estate. If you have children, your spouse will inherit all your personal possessions together with the first £270,000 in your net estate. Any remainder of the estate is divided into two of which your spouse receives one half, and your children share the other half between them equally.

All executors named in a will are required to act

Named executors in a will are not obligated to act, instead they have the right to act should they wish to do so. An appointed executor can renounce permanently, or they can opt to have ‘power reserved’ which allows the other executor(s) to obtain the grant of probate and they will only step in if required. Opting for ‘power reserved’ is often the case in estates where executors are not located close to each other and so it can be difficult obtaining signatures for documents from all.

Your home will automatically pass to your spouse on your death

What happens to your home depends on whether you own it as joint tenants or as tenants in common. The latter provides that your share of the home will pass in accordance with your will or the rules of intestacy. If you own your home as joint tenants with your spouse then the property will pass automatically to your spouse based on the doctrine of survivorship.

Probate is always needed

There are many situations in which you will need to apply for a grant of probate, but not always. You may not need probate to administer an estate if no property is owned by the estate or all assets in an estate are jointly owned with someone who is still living or the estate is reasonably small and all banks and building societies have stated that they can release funds without a Grant of Probate.

If you die can your family can decide who will look after your children?

If you do not make a will appointing who you want to be your children’s guardians, it will be left to the court to decide who looks after them. 

Can a will be challenged?

It is often a misconception that wills are final and cannot be challenged. However, the law sets out certain people who can make a claim against an estate dependant on their relationship with the deceased. The Inheritance Act (Provision for Family and Dependants) 1975 allows certain individuals to claim financial provision from a deceased person’s estate if they believe they have not been provided for suitably in the will. Individuals include but are not limited to: direct family members such as children or grandchildren, a spouse or anyone who was financially dependent on the deceased. A will can also be challenged on the basis that the deceased lacked mental capacity to make the will. This point highlights the importance of making sure your will meets the requirements of validity.  

How Moore Barlow can help

We take time to understand your requirements, enabling us to offer you bespoke advice. With a team of specialists in tax, wealth management, estate planning and rural services our wide-ranging expertise enables us to provide you with practical solutions tailored to your and your family’s needs.

If you wish to discuss wills or probate please contact a member of our Private Wealth team.