Making your wishes stand…

…or doing it My Way

Making a Will is essential so that your wishes happen with your funeral and estate

We all want to be able to decide our own futures from choosing what happens at our funeral (where My Way, by Frank Sinatra, is one of the most popular songs played) to what happens to our estate. If you want to decide what happens then making a Will is essential.

With a Will you can decide on your funeral wishes, who sorts out your estate in terms of executors and who inherits what. However if you do not make a Will then the Intestacy Rules will sort out your estate, meaning that family members or people you do not want to benefit actually do.

Charities will only benefit if you make a Will – they cannot benefit under the Intestacy Rules – and if you make a positive decision to include them in your Will you need to ensure your wishes stand and are carried out. However, in some cases that is not the end of it. Despite making a Will it does not guarantee that your wishes will actually happen. Many Wills do not get admitted to probate (so the Court never gets to issue a Grant of Probate) and they do not see the light of day.

In this situation assets owned jointly usually pass by survivorship so that could be to a spouse, next of kin or even someone who you wanted on your bank account as a joint signatory (who has incorrectly been made a joint owner). Be aware, currently banks and building societies will release funds of up to £50,000 per account to anyone who produces a death certificate without seeing a Grant of Probate and regardless of their entitlement. This is because only certain types of assets require the production of a Grant of Probate, typically shares and other investments as well as land and property.

Another potential issue is that the disgruntled or disinherited family could decide to tear up your Will so that they can ignore gifts to your chosen charity, relying on the Intestacy Rules to benefit instead.

Even if the Will is admitted to probate there is no guarantee that all your assets will be logged which could result in not only tax evasion, but also your intended beneficiaries, whether family or otherwise, losing out.

However the advantage with your Will going to probate does mean that as a public document the close family can check it and charities are notified. It therefore provides a method for examining the finances as well.

It is now becoming more usual for people to hold assets via internet bank accounts whereby there is very little paperwork to be found after your death. Without access to passwords etc. locating such digital assets becomes a very difficult task.

The main issue is providing a suitable asset log which can be stored safely with a copy of your Will. Care is required so that the asset log is not left with the wrong people providing them with full access to those assets. Also passwords are meant to be changed for greater security so keeping the log up to date becomes a practical exercise as well.

The Law Commission, the body that looks at law reform, is currently looking at modernising the way that Wills are made with a view to bringing laws up to date that came in to effect in the first year of the reign of Queen Victoria. The concern is that in the rush to modernise; some of the safeguards that have existed in the past will be removed leaving the elderly more vulnerable to exploitation.

So what steps can you take to ensure that your wishes stand?

  • Make and deposit your Will with a reputable organisation such as a firm of solicitors;
  • Consider carefully who you appoint as executors – you don’t always need a professional, but sometimes they can help;
  • Let individuals or charities know of your wishes in advance. There is no harm in sending them a pledge card -      it means they can ask questions after your death;
  • There is nothing that prevents you from leaving copies of your Will with third parties and the family. At least that then provides a starting point if somebody thinks something may have gone wrong; and
  • If you have online bank accounts get a suitable asset log which you can complete and leave with your copy of the Will.

Summary

No-one wants your wishes to be ignored, but you need to take appropriate steps to protect and ensure that your wishes are carried out. If you want to do it My Way then the starting point is to make a Will.

For further information, help and advise concerning Wills, Trusts & Probates please contact our Wills, Trusts & Probate on 01733 882800 or email info@hcsolicitors.co.uk

Author

Henry Anstey, Partner

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.