Common Misconceptions About Wills, Lasting Powers of Attorney and Probate

Wills, Lasting Powers of Attorney and Probate are often misunderstood or oversimplified. These legal instruments/processes are crucial in ensuring your wishes are formally recorded, your chosen representatives can act for you when needed and your assets are distributed correctly and according to your wishes. Misconceptions in these areas can lead to unnecessary distress, legal complications, and unintended consequences.

This article addresses some of the most common misconceptions about Wills, Lasting Powers of Attorney and Probate to help you to make informed decisions and plan effectively for your future.

Wills

Misconception 1: “My Will shall always remain private”

Reality: Your Will remains entirely private during your lifetime, only (provided you do not disclose it to anyone).

However, upon your death, its privacy may be lost depending on if:

1. Probate is required: Your Will shall need to be lodged with the Probate Registry, the Will shall then become a public document and will be accessible to the general public. 
2. Probate is not required: Your Will remains a private document shared between your Executors, and the beneficiaries, unless they choose to disclose it to others. 

Misconception 2: “Getting married will not affect the provisions made in my Will” 

Reality: A Will made prior to marriage is automatically revoked upon marriage (unless a contemplation of marriage clause is included in the Will, as discussed below).

If you are planning to marry, you can include a special clause in your Will to confirm that your Will is being made in contemplation of your upcoming marriage to a specific individual. This clause ensures that your Will remains valid after the marriage takes place.

If you do not make a new Will after you marry and before you die, then legally you are deemed to have died intestate and therefore, the rules of intestacy will apply to your Estate and decide how your assets are divided on your death.

Misconception 3: “I am too young to make a Will”

Reality: If you’re over 18 and have assets or dependents, a Will is not only appropriate — it’s responsible and highly recommended.

A Will is a legal document in which you control how your estate is dealt with and who benefits from it when you die. A few of the types of provisions that can be included in your Will are: 

1. Specific Gift provisions: A specific gift is when you gift specific item(s) of your personal belongings (i.e. jewellery, antique collections, ornaments, etc) to a beneficiary.
2. Guardianship provisions: If you have children who are under the age of 18, you can appoint a legal guardian in your Will to take responsibility of your children if you and the other parent both die. If there is no surviving parent with parental responsibility and you have not included a Guardianship clause in your Will, the Court will decide who cares for your children. 
3. Pet provisions: If you have a pet you can nominate an individual or organisation in your Will to take care of your pet if you die. Additionally, you can also choose to leave money to the nominated individual or organisation for the care of your pet. 

Lasting Powers of Attorney

Misconception 1: “My next of kin can make decisions for me”

Reality: The term “next of kin” carries no legal authority in UK Law. Even a spouse, civil partner, long term partner or child does not have any legal rights to make decisions on your behalf. 

If you want to appoint an individual to act on your behalf if you were to lose mental capacity, then you must formally appoint them as your Attorney under a Lasting Power of Attorney. By appointing that individual as your Attorney, they are granted legal decision-making authority. 

Misconception 2: “A Lasting Power of Attorney can be used after death” 

Reality: A Lasting Power of Attorney is only valid during the lifetime of the Donor. 

On death, the authority to manage the deceased’s affairs as Attorney from the Lasting Power of Attorney expires. The original Lasting Powers of Attorney must then be formally cancelled.

The authority to manage the deceased’s affairs then passes to the Executors or Administrators under a Grant of Probate or Letters of Administration.

Misconception 3: “Lasting Powers of Attorney cannot be or are hard to stop”

Reality: Lasting Powers of Attorney can be cancelled (“revoked”) at any time provided that you still have mental capacity.

To revoke Lasting Powers of Attorney, you will need to sign a Deed of Revocation. This is a legal document that confirms that you want to revoke the Lasting Powers of Attorney so that your Attorney(s) no longer act on your behalf. 

You are always free to create new Lasting Powers of Attorney later, if your preferences or circumstances change.

Probate

Misconception 1: “Probate is always required”

Reality: Probate is not always required. The need for a Grant of Probate depends on the type of assets in the estate, their ownership and value of the estate.

A Grant of Probate is generally not required if:

1. All assets were jointly owned and pass automatically to the surviving co-owner.
2. There is no property in the estate.
3. The assets are relatively modest, and financial institutions waive the need for probate.

Misconception 2: “I am an appointed Executor and I have no other option but to act”

Reality: Being appointed as an Executor in a Will does not obligate you to take on the role. 

As an appointed Executor, you have four options:

1. Act as Executor: This process involves you taking on the full responsibility of administering the estate as an Executor. 
2. Renounce the appointment: This process involves you formally stepping away from the role and having no dealings with the Estate. A formal Deed must be signed and sent to the Probate Registry with the Probate application. It is important to note however, that you can only renounce if you have not “intermeddled” with the Estate. 
3. Having power reserved: This means that you will not be actively administering the Estate, but you reserve your power to step in later if you want/need to. In your absence, the other Executors will administer the Estate.
4. Appointing an Attorney to act on your behalf: This process allows you to appoint someone as your ‘Attorney’. You Attorney will act and administer the Estate on your behalf. This is done by way of a limited Power of Attorney, which would state that the Attorney is only able to act in relation to administering the Estate and not in relation to your personal affairs.

Misconception 3: “My property will automatically pass to my spouse”

Reality: This depends entirely on how you own the property. On death, your share of the property will pass depending on the type of ownership that you have. 

There are two ways of owning property in the UK and these are as follows (the below explanation is based on a couple owning a property):

1. Joint Tenants: This means that you both own the property equally and on death your half share will automatically pass to the joint owner by way of survivorship. 
2. Tenants in common: This means that you both own unequal shares in the property and on death your share will pass in accordance with your Will (or the default rules of intestacy, where there is no Will).

How Pinney Talfourd Can Help

As demonstrated, effective estate planning and administration are crucial. If you would like to learn more or seek expert advice and guidance tailored to your needs, our experienced solicitors are here to help.

Get in touch with our Private Client team on 01708 229 444.