Don't Let These Myths Prevent You From Making A Will

Making a Will can be an emotive topic for many people, and there are a number of myths surrounding Will-making that can either scare people away from writing a Will, or that can prompt people to make ill-informed decisions.

Here are some of the myths we have heard over the years – and some advice on what you need to do put your affairs in order:

Myth: I’ve made a Will but my assets are not secure

Fact:

• Your property and estate are your own and no one can tell you where you should leave them after you die. You are free to leave everything to the cats’ home if you are mentally capable of making that decision and are not being influenced by anyone.
• It is true that claims can be made against your estate by certain people – usually children, a spouse or dependents - who have been cut out of the Will. There is no fail-safe way to ensure this does not happen, so it very important to have your Will drawn up by a solicitor to guard against any claims as far as is possible.
• In some cases, your assets may be assessed by the local authority if you go into a care home, and some money may be used up or they may place a charge - like a mortgage - on your home. However, there is a lot of scaremongering around this subject. Only a very small percentage of the population actually ends up in residential care, and it is very rare that your house would need to be sold during your lifetime to fund your care. If absolutely necessary, the local authority would normally place a charge on the property which would only need to be settled after you pass away, when the house is sold.

Myth: I’m getting married and it won’t have any effect on my current Will

Fact:

• In England and Wales, getting married actually revokes your existing Will. If you do not make a new Will following your marriage, your estate will be distributed as if you have died intestate - without a Will. This can be problematic, especially in a situation where there is a second marriage. For example, if you have made a Will leaving everything to your children and you then remarry, the Will is revoked and a large portion – and sometimes all – of your estate will pass to your new spouse. This can leave your children with very little or even none of your estate. You should always consider making a Will if you are planning to remarry to make sure that your wishes are carried out.
• If you make a Will ‘in contemplation of marriage’ to a particular person, and a clause to this effect is included in the Will, it will not be revoked by the marriage. Therefore, it is very important to get professional advice if you are in this situation. 

Myth: My children can easily become disinherited if I divorce

Fact:

• If you already have a Will when you divorce, this does not have any effect on your children inheriting your estate. The only effect divorce has on an existing Will is that the divorced spouse is treated as if they have died once the divorce is finalised. This avoids your estate passing to your former spouse, but it has no effect on your children’s share of your estate.
• Of course, if you have children from a previous marriage and want to protect them, it is very important that you update your Will via a legal professional to make sure it reflects your current situation. We can assist with all aspects of Will making and explain the best way of making sure your wishes are carried out.

Myth: My whole estate will be taken by the government as Inheritance Tax

Fact:

• This is one of the areas that people worry the most about when it comes to what happens to their estate after death, but it is actually relatively rare that Inheritance Tax needs to be paid after all of the available tax reliefs are claimed.
• Everyone has a nil-rate band – a tax-free amount - of £325,000. If you are married and you leave your entire estate to your spouse, then when both of you have died, their unused nil-rate band can be claimed. This means that most married couples can leave £650,000 tax-free.
• In addition to these reliefs, there is also the Residence Nil Rate Band which applies when you leave your home to your direct descendants (children and grandchildren etc), and you can also claim Business Property Relief or Agricultural Property Relief if you have assets that qualify for this.
• Inheritance Tax is charged at 40 percent on any assets that fall above the total of the relevant reliefs. The vast majority of people fall under the thresholds and do not have to pay Inheritance Tax.

Myth: The Local Authority could make decisions regarding my property and where I live

Fact:

• This would only occur if the Local Authority was appointed as your attorney, or if it was appointed to deal with things on your behalf under a Deputyship order. This would happen only in cases where you had no family or friends who were able to act as your attorneys/deputies, and if you were referred to the Local Authority through social services. Even then they are more likely to instruct a local solicitor to assist you.
• In order to avoid any involvement in your affairs by people you have not chosen, it is sensible to have a Lasting Power of Attorney drawn up. You will then be able to appoint family members or friends of your choice to assist with your affairs if you were unable to make decisions yourself.
• Having a Lasting Power of Attorney in place also means that you will not need a Deputyship order if you lose mental capacity at any point. The process of preparing and registering a Lasting Power of Attorney is much more straightforward and cheaper than Deputyship.

If you would like to discuss any of the points raised in this article or would like to make a Will or a Lasting Power of Attorney, please contact us here or telephone our Lifetime Planning experts in any of our JCP offices:

• Swansea: 01792 773773
• Cardiff: 02920 225472
• Carmarthen: 01267 234022
• Caerphilly: 02920 860628
• Cowbridge: 01446 771742
• Haverfordwest: 01437 764723
• Fishguard: 01348 873671