I have heard that last week was will writing week. My wife and I executed wills many years ago through a solicitor and I would like your advice on if these wills are the most effective way to protect our assets as we get older
The tax savings resulting from having an efficient will, particularly inheritance tax saving, can be considerable. This is where a financial adviser’s advice is invaluable. Your solicitor can then execute a will for you following the financial adviser’s and your own guidance to ensure exactly what you want to happen to your estate occurs.
According to research from www.unbiased.co.uk, the number of UK adults without a will is as high as 30 million. Dying intestate without a will means there is a strict order of who gets what and if no one comes forward, the Crown gets the estate.
If there is no will or no executors appointed when someone passes away, a letter of administration needs to be applied for.
Another problem is that when dying intestate, inheritance tax can fall due before the estate is released. Be aware that Scottish law on inheritance is different.
As you know, dying with a valid will means a grant of probate is sought by the executor through the probate office, which is controlled by HMCS which runs the probate service. Seeking probate is generally a quicker process then seeking a letter of administration.
If you have more than one executor, it is common to agree that one will apply for the grant and sort out the will. However, up to four executors can apply jointly and sort out everything together.
In recent court cases, the court has removed an executor because they are not considered not to be acting in the interest of the beneficiaries or the estate.
As you each have a will which mirror each others, you will leave your assets to your spouse upon death and, in the event of default, your children will receive the estate.
You need to be careful with this type of will as following the death of the first party there is nothing to stop the remaining spouse altering his or her will and, rather than leaving their estate to the original beneficiaries, bequeathing it to somebody or something else such as a charity.
A way of avoiding this situation is for you both to execute what is known as mutual wills. This means that on the death of the first person, the terms of the will become binding and irrevocable, even if the mutual will itself is subsequently revoked by the survivor.
You cannot alter a will by amending the original after it has been signed and witnessed. Any alterations made to the will are assumed to have been made at a later date and so do not form part of the original legally valid will. The only way you can change a will is by making a codicil to the will. These are normally added for very straightforward changes such an increase to a cash legacy. The only other option is to execute a new will.
As you are both in your 70s, I would like to make you aware of living wills. You can use a living will, known as an advance decision or advance directive, to indicate your wish to refuse all or some forms of medical treatment if you lose mental capacity in the future.
A valid advance decision has the same effect as a refusal of treatment by a person with capacity. The treatment cannot lawfully be given or the doctor might face civil liability or criminal prosecution.
I truly believe everybody (of any age) should write a will. After all, it costs as little as £120.
Kim North (kim@tech andtech.co.uk) is director of Technology & Technology