There are a surprising number of misconceptions surrounding the workings of a Last Will and Testament. In this article we want to break down the most important points of a Will, so that you can truly understand how a Will works. Here we discuss ten key elements to a Will. Understand these, and you are on your way to understanding exactly how a Last Will and Testament works.
1. A Will must be written
There are a few different approaches to writing a Will, but even though we are well into the 21st century, there is no getting around the requirement that a Will must be in writing. The law does not allow for a Will to be an audio recording, a video recording, stored on an iPhone, stored on your computer, or verbally explained to a friend.
There are a few odd exceptions to this general statement. For example, a “Nuncupative Will” is a verbal or oral Will that is permitted, but only for an active service person on active duty. This exception to the law was to allow a soldier on the battlefield, mortally wounded, to explain how they would like their assets to be divided. It is a very specific exception, but it is written into UK law.
In Australia, a Will was written on an iPhone and accepted by the courts. But it did have to go to the Supreme court of Queensland, and was accepted under very specific conditions. It is not an approach to take for the rest of us.
Some jurisdictions around the World are also accepting electronically signed Wills. British Columbia in Canada has brought in new legislation to accept a Will written, signed and stored entirely electronically. Four US States also currently accept this. The UK has no plans to allow electronic signatures on Wills.
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.