Frequently Asked Questions
I am married with children. I do not have a Will. If I were to die, would everything go to my spouse?
Not necessarily. It is possible that some, but not all, jointly owned assets that you have with your spouse will pass to them automatically. If you own assets in your sole name and die without a Will, specific rules will apply, ‘the Intestacy Rules’. Under these rules only some of your assets may pass to your spouse. Your spouse is entitled to receive your personal belongings and a statutory legacy of £125,000 only. Anything in excess of this value is divided into two, with half going to your children (or placed in trust for them if they are under the age of eighteen) and the other half placed in trust, with your spouse receiving the income and your children the capital sum when your spouse dies. This can be administratively expensive for your trustees to manage and more often than not, far more complicated than you would have wished.
What is the difference between owning property as joint tenants and tenants in common?
If you own property as joint tenants, you own it together, with no divisible share. If you were to die, then it would automatically pass to the surviving joint owner. If you own property as tenants in common, then you do have a divisible share and the property can pass to your choice of beneficiary on your death, by Will.
If you own property as a joint tenant but want your share to pass to someone other than the other joint owner on your death, even if you put these instructions in your Will, this will not happen. You should seek legal advice to ‘sever’ the joint tenancy.
I made a Will prior to my marriage/registered Civil Partnership. Do I now need to change it?
The law says that marriage or a registered Civil Partnership revokes a Will and therefore as things are, your Will would be invalid and you would be deemed not to have one at all. Your estate would be distributed in accordance with the intestacy rules and not with your wishes. You should make a new Will as soon as possible.
If you are about to get married or enter into a registered Civil Partnership and are making your Will, make sure you tell your solicitor. The Will can be worded to prevent it from being revoked when you do marry or become Civil Partners.
I have a Will which is out of date. Rather than go to the expense of changing it, I have altered it myself by crossing out the parts that I no longer wish to apply. Will this be valid on my death?
Almost certainly not. In addition, amendments could invalidate the entire Will. You should seek legal advice.
I have small children and want to appoint Guardians in my Will to look after them in the event of my death. What is the difference between a Guardian and a Trustee and can they be the same people?
The Trustees deal with all financial matters and are responsible for the assets held in trust for the children until they become fully entitled to them. They will decide what is best in terms of investment and growth of the fund and can release cash from it for the children’s use as they grow older.
The guardians are the individuals who take on parental responsibility for the child and look after the child’s welfare as if they were the parent. It is important that when you choose a Guardian you are confident that that person would look after that child as if they were their own.
Guardians and Trustees can be the same people. However it is often better for them to be different people. This can avoid conflicts of interest and confusion over the roles that they have. They must be able to work closely together though, in order to look after the child’s needs properly.
David Endicott
Managing Partner
Spratt Endicott Solicitors
