We are in the midst of a very strange time with the outbreak of the COVID-19 pandemic. People are being asked to “self-isolate”, some people are being quarantined, and thoughts are turning to estate planning and getting one’s affairs in order.
We get this question a lot: “Can you let me know how to make a Will for my parents, or an elderly neighbour?” You may have a friend or family member who needs a Will, but they are not very good with computers. You have heard horror stories about the blank DIY Will Kits and how they don’t produce quality final documents. Surely there must be another option.
You may also be thinking about creating a Lasting Power of Attorney for property and financial affairs, or a Lasting Power of Attorney for Health and Wellfare. Perhaps you’re even considering an Advance Directive.
You may not want to book an appointment with a solicitor. You certainly don’t want strangers coming to your door (or your elderly parent’s door) offering to write a Will. Is it possible to prepare documents for somebody else without an appointment, and without leaving one’s home?
Let’s be clear from the outset. The person that you intend to prepare the Will for must have testamentary capacity. It’s one thing for them to not like computers, but if they are struggling with a cognitive illness like dementia or Alzheimer’s, then this is a non-starter. The person must know that they are working with their Last Will and Testament, they must understand the contents of that document, and they must appreciate the implications of what they are signing.
We would also recommend steering away from this approach if you are planning on making yourself a beneficiary in the Will, particularly if other people have an expectation that they will be beneficiaries, but are going to be disinherited. For example, if you are one of three siblings, and you want to help your elderly mother prepare her Will leaving everything to yourself, there is a good chance that the Will is going to be challenged and ultimately rejected by the courts. Likewise, if you are a care provider and planning to include yourself as a beneficiary, we would not recommend taking this approach.
Most people don’t have a Will. And of those who do, many are not kept up to date. We often hear from people who prepared a Will decades ago, sometimes before they had children. They have a sense of knowing that their Will is in place, but they know in their heart that the Will is out-of-date, and probably doesn’t reflect their wishes. They need to update a Will, but they are not sure how to do it in the most cost effective way.
Unfortunately, the traditional approach to writing a Will is expensive and inconvenient. The same applies to updating a Will. The reason why people don’t update their Will is that same reason that most people don’t have a Will at all – there simply isn’t the time to get it done.
Fortunately, there are now a number of options to making sure that your Will is up-to-date.
When do I need to update my Will?
1. If your Will is automatically cancelled.
There is only one situation where your Will ceases to function (other than the document being destroyed) – If you get married, and your Will was written before you got married (unless the Will specifically states that it was written in contemplation of marriage).
Many of us now live in non-traditional, or “non-nuclear” families. According to Encyclopedia Brittanica “A nuclear family, elementary family or conjugal family is a family group consisting of two parents and their children (one or more).”
It is the classic family structure which is still common, but according to every statistical analysis, a decreasing number of families meet this criteria.
We are seeing far more one-parent families, “blended” or “stepfamilies” where one partner is not the biological parent of the children, civil partnerships and three parents living under the same roof.
According to data coming from the Office for National Statistics, the number of marriage rate has halved in the UK since the 1970’s. In 2017, the married or civil partner couple family remains the most common, but the cohabiting couple family growing the fastest (doubling from 1996). In fact, about half the population of the UK are either single, divorced, widowed or in a civil partnership.
Dying without a Will is a choice. You can choose whether to take the time to prepare a Will, or you can delay, postpone and procrastinate. But it is important to understand the consequences of dying without a Will, not just with the distribution of your possessions, but also with the “estate administration” process.
Hopefully at the end of this article the question in the title will be answered for you. It NEVER makes sense to die without a Will. It is a decision that you make that doesn’t impact you significantly (you will be dead), but it has serious repercussions for your family and loved-ones.
Dying without a Will – the first few days
If something were to happen to you today, there is a good chance that your family would be struggling with grief. But quite quickly actions need to be taken and this would fall to your “next-of-kin”.
Although the UK doesn’t have a legal concept of “next-of-kin” it generally means your closest relative.
There are two ways to die in the UK; with a Will, and without a Will. If you are clever, you would choose the former. There is never a time when planning to die without a Will makes sense. But whether or not you have a Will makes a difference when it comes to the probate process.
If you have a Will, you will have named an “Executor“. This person has the responsibility to gather and secure your assets, and then distribute them according to the instructions in the Will. They also have responsibility to carry out all of the paperwork associated with your “estate” (everything that you owned when you died).
Imagine the day after you have died. Your Executor goes to your bank and explains to the bank cashier that they are your Executor, and that you would like all of the money from the account. The Executor may even have a Will.
Imagine the cashier obliges, and hands over the £50,000.
The next day, somebody else arrives at the bank, but they have a different Will, which names them as the Executor, and they want the contents of the bank account. Their Will is signed and dated after the other Will.
This person had already secured the money from a Building Society account across the other side of town.
It is this type of mess that is avoided by the probate process.
What is Probate?
Probate is the process by which your Will is accepted as your official, legal Last Will and Testament. It is an opportunity for people to challenge that Will. It is also the process by which your estate administrator is appointed, either as the Executor named in your Will, or as an administrator nominated by the courts if there is no Will. This person is given a court issued document that gives them the authority to act as your estate administrator.