Will or no will - what's the difference

Milanese

From my research it is apparent that it is better to have a will to make sure that all the wishes of the deceased are effected and this avoids family disputes over inheritance. Is that the only reason? In the absence of a will does it take a lot longer to administer? Is there a greater obligation to see a solicitor? More costly? Higher inheritance tax?

I was wondering what is the difference between having a will and not having a will if the rules of intestacy are already in line with what the deceased had intended?

My mum unexpectedly passed away recently. Although she had made a will it could now be invalid as one of the witnesses who signed it may become a beneficiary (he is the boyfriend of one of my sisters).

My mum was divorced so she had left most of her estate to her children and only a small amount to her grandchildren. The rules of intestacy means that we would have inherited her estate anyway. So was there any real need to have a will in the first place?

As we all get on as siblings we could agree on a Deed of Variation to allow for the grandchildren to receive a proportion of the estate. One of my siblings has intellectual disability and a provision was made for his care with his share of the estate to go into a trust. But again, isn't this something that we could agree on together in the absence of a will? In short, is it really the end of the world if we are obliged to proceed as if there is no will? What would be the difference if there had been a valid will and what are the aspects that we need to be aware of when going down the intestacy route? Thanks in advance for your replies.

TBagpuss

the will wouldn't be invalid if one of the beneficiaries witnessed it, it would simply mean that that beneficiary could not inherit. So in your case, the will is valid, but your sister's boyfriend is not entitled to receive anything he would otherwise have been entitled to. As he is not married to your sister (I assume ) this would not prevent your sister inheriting her share.

A deed of rectification would be more difficult if any of the beneficiaries are children and if your brother's disability means he lacks capacity that would also make it harder.

You cannot simply chose to go down the intestacy route as it sounds as though there is a valid will.

mountainofdebt

Would the will be invalid even if the boyfriend was actually the husband?

I'm in the same position as the OP (with the exception that Mum is alive lol) - everything in her will is how it would have been shared even if she hadn't made one.

But I guess that whilst everyone is getting along now,its better to assume the worst and put everything in place just in case they aren't when it matters

Mojisola

mountainofdebt wrote: »

Would the will be invalid even if the boyfriend was actually the husband?

As long as both witnesses watched the will being signed and then signed their own names, the will is valid.

If it turned out that one of the witnesses had been left something in the will, they could not receive that inheritance.

If a witness later becomes a spouse of a beneficiary but wasn't at the time of signing, AIUI they can still receive their inheritance.

Crabapple

As a general point, a lot of people make Wills that distribute the estate in the same way as the intestacy rules would, eg. to spouse then on to their children.

There is still a distinct advantage to making a Will in that Executors are appointed who have legal authority immediately to deal with matters (even though they will normally need a Grant to collect assets etc).

On the specific points mentioned in your situation, no Will means no Trust for your brother, he would get the share outright. You couldn't simply decide not to hand it over, someone would need to take over his financial affairs. It may be that there is already an LPA or Deputyship in place, but even so the funds would be treated as his for all purposes, such as assessing payment for care fees and eligibility for means tested benefits.

A Deed of Variation is something that you would struggle to draw up without a Solicitor and therefore legal fees. What if everyone did not agree to hand funds on to the grandchildren and therefore reduce their share of the estate?

It's almost always going to be simpler for someone to write a Will while they are alive than it is for the family to sort everything out after death.

Milanese

Thanks for the replies. I can see now why having a will makes matters less complicated to administer.

Mojisola

I think that appointing the executor/s who will deal with your estate is a big reason for having a will. Without a will, you don't know which of your relatives will get the grant of administration.