Do I need a Will if I own property?
Posted on 24th January 2024
In England and Wales, just because you own a property, you are under no legal obligation to make, or update, your Will. However, having a valid Will in place sets out exactly what you want to happen to your property upon your death, as well as how any other assets should pass. Our Solicitors in Lytham breakdown why a Will is important, especially if you own property in England and Wales:
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Importance of a Will
A Will allows you to decide the beneficiaries of your money, property, and possessions after your death. When drafted by expert Solicitors in Lytham, it also can help in minimising the Inheritance Tax that might be due on the value of the property and money you leave behind, as Wills Solicitors are well aware of what tax-saving advantages you may be able to make use of. If a person dies without a Will, the law, known as the Rules of Intestacy, dictate what happens to your assets. This can be devastating in many circumstances, such as cohabitees, who would not benefit under the rules, or stepchildren who cannot benefit from their step-parent’s estates.
Joint Property Ownership
In cases of joint tenants property ownership, the property automatically passes to the surviving owner upon the death of one owner, a concept known as 'passing by survivorship'. However, that is not always the most tax-advantageous or the desired outcome. Many people wouldn’t be aware of sideways disinheritance, but you can find out more about it in our article, here.
Statistics
Recent research indicates that less than 4 in 10 adults in the UK have made a Will, despite many owning a property. This equates to around 30 to 31 million people whose estate passes under the Rules of Intestacy, rather than in the desired, or best, way. Some people would argue that they want what happens under the Rules to take effect anyway, so they do not need a Will. As many of our Solicitors in Lytham’s clients have discovered, having a Will can make the Probate process easier, cheaper, and quicker, saving time, money, and stress for your loved ones on your death.
Do I need a Solicitor to draft a Will?
While it is possible to draft a Will without legal assistance, it is always advisable to seek professional advice, especially if the will is not straightforward. This will ensure your final Will is legally valid and accurately reflects your wishes. Our Solicitors in Lytham come across many clients who ask whether they can simply draft their Wills themselves. Unfortunately, the issues we come across with homemade Wills are aplenty. In fact, in the last two years alone, our team have been asked for help by clients who have had the following issues:
Trust DIY Will
The sons of the deceased found that, when their father died, the homemade Will had only been signed by one witness, therefore it was not valid. As such, the property trust their father had included in the Will did not take effect under the Rules of Intestacy, creating a lot of stress and anxiety for the sons, as they had to rely on the good faith of the property co-owner to honour their father’s wishes.
Gifts to Grandchildren DIY Will
Another such Will our Solicitors in Lytham have dealt with was homemade, but not witnessed at all. As such, the gifts to the grandchildren of the deceased’s property was not valid, and her children had to decide whether to enter into a Deed of Variation to honour their parent’s wishes, or not, as they would lose out on their inheritance. Some might argue that the gift was going to the grandchildren, so it was an easy choice, however, one of the children had to children of their own, so their ‘bloodline’ was missing out entirely.
Sideways Disinheritance
In this case, the deceased had tried to incorporate a trust into their Will which meant that, on their death, their cohabitee received everything, and it then passed to their child. Unfortunately, the deceased had not executed the trust properly, and therefore everything just passed to their cohabitee. As such, sideways disinheritance occurred.
Invalid Amendments
Our Solicitors in Lytham have come across multiple Wills which have been amended after the date of original signature, usually made more obvious by the different ink or handwriting used, as a person’s writing tends to change as they age. Many of the amendments were invalid, due to not being witnessed correctly or being worded correctly. This means that the original clauses underneath come into effect still, making the changes irrelevant, and the deceased’s wishes not carried out as they had wanted.
Forgetting Important Will elements
Finally, another common issue we see is that the person making the DIY Will does not have a full knowledge of what needs to be included in a Will. This ends up meaning that important things- such as the appointment of executors to handle the estate, or substitute gifts to take effect if someone in the Will dies before the person making it, are often forgotten.
You may think that purchasing a DIY Will kit from a local shop should be sufficient. However, the Will kit cannot advise you on Inheritance Tax, mitigating action, trusts to protect your assets and loved ones, or ensure your Will is validly executed. In fact, the majority of the cases above were when the person had made a DIY Will using a Will kit, so they probably thought all would be good on their deaths.
Having a will in England and Wales, especially as a property owner, is a prudent step to ensure that your assets are distributed according to your wishes after your death. The complex legal landscape surrounding inheritance, coupled with the potential for family disputes, makes the importance of having a well-drafted, legally sound Will even more prominent.
When you have just spend hundreds of thousands of pounds on the purchase of your home, why not spend a few hundred pounds to ensure your home is protected after you’re gone. Contact our Solicitors in Lytham today to discuss making – or updating – your Will on 01253 202 452.
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