There are many misconceptions about Will writing – some potentially very costly. Here are some of the most common myths:
Wrong! If you die without a Will, by law, your estate will be distributed in accordance with the ‘rules of intestacy’. This means that your children, parents or brothers and sisters may be entitled to a share. In some circumstances this may even mean that the marital home would have to be sold to pay these inheritances.
Wrong! This is one of the biggest fallacies that still persists despite media coverage to the contrary – it’s not unusual to read reports of a supposed ‘common law’ spouse being left with absolutely nothing after being together with their partner for twenty or thirty years. The fact is that the laws of England and Wales do not recognise ‘common law spouses’. If you cohabit and die without a Will, then your estate will be left to your relatives in accordance with the ‘rules of intestacy’ and your partner won’t get a penny and may even be turfed out of house and home. If you had been living together for more than two years, your partner could challenge this in Court. But that is a very lengthy, expensive and stressful process with an uncertain outcome other than the fact that your partner’s finances and your estate would be considerably diminished if not totally wiped out in paying fees to the only winners in these cases – lawyers!
Wrong! Godparents have no legal standing and do not automatically become the guardians of your children. Nor do any of your relatives. Guardians can only be appointed by a legal document properly signed and witnessed. This is most commonly done in a Will. Without guardians being legally appointed, the Court decides who will have responsibility for your children. Until this decision is made, your children will inevitably be taken into care by Social Services.
Wrong! It doesn’t matter whether you are separated, have filed for divorce or had a decree nisi granted, until you have been granted a decree absolute your spouse remains entitled to any inheritance under your Will or the ‘rules of intestacy’ if you die without a Will.
Once a decree absolute has been granted, then, as far as inheritance is concerned, the former spouse is treated as having died on the date of the decree. Any gift made to your former spouse will fail but any substitute beneficiaries would still receive the gift. With no substitute beneficiaries, the gift would form part of your residual estate. If you had left your residual estate to your former spouse with no substitute beneficiaries, there would be an intestacy and your estate will be distributed in accordance with the ‘rules of intestacy’.
Having said all that, there are still certain circumstances in which a former spouse can make a claim on your estate.
Finally, a former spouse cannot act as your executor. This could leave you without an executor if you had appointed your former spouse as your sole executor.
It is very important to review your Will with professional advice early in the separation process.