What is a Mirror Will?

Lawpack on January 8, 2021

The term Mirror Wills is used for Wills made by spouses or unmarried partners where the wishes of each person reflects the wishes of the other. They are very common for people who are married or in a relationship who will usually want to make similar provisions in their Wills.  This usually means that they both leave the bulk of their property and assets to each other. Mirror Wills are individual Wills made by each person; they are not a ‘joint’ Will.

The lawyer-approved Lawpack Mirror Wills Kit for couples provides Mirror Will forms that have been drafted to make the creation of Mirror Wills a straightforward process. It is assumed that you will wish to name your spouse or partner as your main beneficiary and name an alternative beneficiary if he or she predeceases you, but it is possible to alter the Will Form to make different provision.

Mirror Wills vs Mutual Wills

It is possible to create a so-called ‘Mutual Will’ agreement where you and your spouse or partner not only wish to make similar provision but wish both of you to be unable to make any other form of provision. Such agreements are not covered by the Lawpack Mirror Wills Kit; they are not common and can cause significant problems. If you do think you want to enter into a Mutual Will agreement then we strongly suggest that you consult a solicitor.

Mirror Wills pros and cons

Mirror Wills are relatively easy, quick and economical to set up, as both spouse or partners make similar wishes. For convenience the Lawpack Mirror Wills Kit is drafted to provide for legacies and gifts that can apply whoever dies first, and for legacies and gifts that will apply only on the death of the second. For example, you may want to give sentimental items such as watches or jewellery to children whoever dies first, but only want a gift of the house to take effect when you have both died.

However either person can make different provisions in their Will; this can be a drawback as there is nothing to stop one person changing their Will without the other’s knowledge.

Can you change a Mirror Will after one person dies?

Yes.  Mirror Wills created by a husband and wife or by partners are not legally connected. There is nothing stopping either person changing their Will while their spouse/partner is alive or after their death.

Can a Mirror Will be changed after death?

Like any other Will, a Mirror Will cannot itself be changed or rewritten after the testator’s death. But the effect of the Will can be changed, so that beneficiaries can change their own entitlement under the Will. This is done by what’s called a deed of variation. Changes to an estate by a deed of variation may be useful in a range of circumstances. For example, a beneficiary may not want or need their share and would like it to go to charity, or there could also be tax-efficient reasons for changing the distribution of an estate.

8 reasons why you should be making a Will today

Lawpack on April 30, 2020

Wills – Your Questions Answered

An at-a-glance guide to making a Will, and the risks you run if you haven’t made a Will.

1. If you don’t make a will, you cannot control who will inherit your money and property.

If you die without making a Will, your property will be distributed according to law (the law of ‘intestacy’), which is likely to be against your personal wishes and the people you want to inherit your possessions may not benefit. By making a Will, you can determine precisely who will inherit your property and let your loved ones know that you have considered their needs.

The law of intestacy is complex, but, broadly speaking, the bulk of your estate will go to your spouse (including a registered civil partner) or, if none, to your children (whether or not they are adults) and, if none, to other blood relatives.

The effect of the rules depends partly on whether you have children and your marital status. If you’re married with no children, your surviving spouse/civil partner will inherit everything.

But if you’re married with children, when you die without a Will less than you expect may go to your spouse. Your surviving spouse will receive £250,000, plus your personal belongings, and then half of the estate automatically. Your children will then inherit the remaining half share of the estate (or on trust until they reach the age of 18).

So it’s always prudent to have a valid will rather than rely on the intestacy rules.

Find out the laws on intestacy here.

2. If you’re not married and haven’t made a Will, your partner may receive nothing.

If you’re not married but are living with your partner and you want them to inherit your estate, it’s particularly important that you make a will. This is because the rules of intestacy make no provision for cohabitation or unmarried partners (other than registered civil partners). If you died without making a Will, your partner may not be legally entitled to anything from your estate.

Find out about the cohabitation risk you take if you’re part of an unmarried couple and haven’t made a will.

3. By making a Will you can determine who will handle your affairs after your death.

If you die without making a Will, you die ‘intestate’. This means that the management of your affairs is then placed in the hands of administrators who are appointed by the court. The administrators distribute your estate according to the rules of intestacy (see above).

4. By making a Will you can name a guardian for your children.

If you have minor children, you can name a guardian to care for them in the event of them being left without any parents. Since a guardian takes the place of a parent, making a will gives you the option of choosing someone you believe will offer the best care for your children if you’re not around.

5. It’s important to make a new Will if you get married or divorced.

Once you have made your Will, changes to your circumstances (e.g. marriage, separation, divorce, having a child or moving house) can make parts of the Will invalid or unfair and open to a successful claim under the Inheritance Act. You should, therefore, review your Will regularly to reflect any major life changes, preferably every five years.

Find out why you should make a Will if you’re getting divorced.

6. You can save Inheritance Tax.

Making a Will gives you the opportunity of saving Inheritance Tax liability. This is particularly important if you have substantial assets.

Find out more about Inheritance Tax here.

7. You must check your Will regularly.

It’s also possible to die partially intestate. This occurs if you fail to deal with all of your property in your Will or if a particular someone who was due to inherit in your Will dies before you or if you divorce and your ex-spouse’s legacy becomes invalid as a result. It’s therefore important to keep your Will up to date.

Is it time you updated your Will? You can make a Will with Lawpack today.

8. You can express your preferences for what happens after your death.

By making a will, you can express your preferences for burial or cremation and for donating organs or your entire body for medical purposes.

You can find out more about how you can protect your loved ones by making a Will here, or you can stop worrying and make a Will today here.

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Life events: when you need to make a new Will

Lawpack on April 29, 2020

There are many life events that occur, which mean that you need to be write a Will. Here is our guide to when is the best time to be thinking about making a new Will.

Changes in your family

You should make a Will, for example, when a baby is born, one of your children becomes 18 (or perhaps some significant later age), or there is a death in the family.

Marriage

This event automatically revokes a previous Will, unless your Will expressly states that it’s made in contemplation of your forthcoming marriage. It’s always safer to write a new will once you’ve got married.

Civil partnership

Registering a civil partnership has the same effect as marriage, so you need to make a new Will.

Divorce

Unlike marriage, a divorce doesn’t revoke a previous Will. But if your former spouse is named as a beneficiary, then upon divorce they will cease to be a beneficiary or receive a gift, unless your Will expressly states that the gift should still take effect if you divorce. If your former spouse is named as executor in your Will, then upon divorce they will no longer be allowed to act as executor or obtain probate of your Will. It’s best to make a new will whenever you get divorced.

You can find out more about why you should make a Will if you’re getting divorced here.

Dissolution of a civil partnership

The dissolution of a civil partnership has the same effect as a divorce and, again, you should write a Will.

Separation

This event doesn’t have the effect on a Will which a divorce has, so it’s best to review the will as soon as separation occurs.

Changes in your financial circumstances

You may have recently acquired assets which you would like to give to particular beneficiaries, or perhaps, due to hard times, your estate may have become insufficient to provide for the legacies you have made. Again, this is a good time to make a new will.

Changes in taxation

If your estate is large enough (or becomes large enough) to attract tax, new taxes or reliefs, or changes in the rates, may call for you to make a new will.

Going to live abroad

It’s normally desirable to make a Will in the country where you reside to simplify the administration of your estate. It may also be helpful if you need to establish a change of domicile. Local advice should be sought.

In any case, it’s always a good idea to review your Will at least every year, so that it’s always up to date.

You can find out more about why you should be making a Will here, or you can stop worrying and write a Will today here.

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What happens if you haven’t made a Will

Lawpack on April 29, 2020

If you die without making a Will, the government effectively makes a Will for you.

Making a Will offers you the peace of mind that your money and possessions will be distributed according to your wishes. If you have not made a Will , your estate will be distributed according to our intestacy laws.

Find out how our intestacy laws work, and discover why they may not correspond to your wishes here.

But there is more to consider than whether or not your wishes will be respected. The consequences of dying without a Will fall hardest on those left behind to pick up the pieces. A survey by the National Consumer Council found that the human cost of people not making a will runs high.

At a time when your loved ones are feeling most vulnerable they will have to deal with…

  • The extra hassle and worry over administering an estate without a will.
  • The extra expense that is associated with administering an estate without a Will .
  • The extra strain and the lasting damage to personal relationships that can occur when it’s not clear how someone may have wished to distribute their money and possessions.
  • The devastating consequences of seeing an estate is distributed (according to the inheritance or intestacy laws) to the ‘wrong’ people.
  • The possible economic consequences of having the family home sold to pay out surviving relatives

Put simply, there is an easy and effective way to save your loved ones a lot of heartache and strife. By making a Will you can ensure that you have peace of mind and that you’re saving your loved ones the time, stress, expense and potential heartache of trying to sort out your affairs after you’re gone.

Making a Will is simple. Make a legally valid Will now.

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The intestacy pitfalls of not making a Will

Lawpack on April 29, 2020

‘Changing living patterns […] mean increasing numbers of people will fall through the safety net provided by our inheritance laws should they die without making a Will’.(1)

The National Consumer Council identified a very worrying ‘Wills gap’. Their research revealed that those who are most at risk of not being covered by the current intestacy laws are also those most likely not to have made a Will. These include cohabitants (people living together but not married), separated or divorced couples and parents with dependent children.

If you haven’t yet made a Will, maybe you should read on…

It’s true to say that everyone should make a will. Today’s family structures are so much more diverse and complicated than our inheritance laws can possibly have accounted for. So we are all, in a sense, not covered, but making a Will can simply solve this.

But what does it mean for those who die without making a Will?

It could mean that the family home may have to be sold to pay claimants on your estate. It could mean that those you intended to leave money to will get nothing. It could mean that your children are looked after by someone who you may not have chosen.

If you haven’t made a Will, the consequences will fall hardest on those you leave behind.

It’s estimated that there are over one million people in England and Wales who know of examples where at least part of the estate went to the ‘wrong’ person.(1) And many more know how much time, expense and stress can be caused when you’re trying to deal with someone’s affairs if they haven’t made a Will. Sometimes it can cause irreparable damage to relationships.

Here are just some things to consider if you think our intestacy laws will cover you.

  • There is no such thing under present laws as a common-law husband or wife. Cohabitants have no automatic right to inheritance.
  • If a divorce has not been finalised, the surviving spouse may inherit the whole, or part, of the estate.
  • Where a guardian for children under the age of 18 has not been identified in a Will, the courts may appoint one.
  • Expensive trusts may be set up or inheritance tax may be applied.

You can find out more about how the laws of intestacy work here, or you can stop worrying and make a Will today here.

(1) National Consumer Council “Finding the Will” 

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How to leave the residue of your estate

Lawpack on March 27, 2020

OK. So you are thinking about making a Will. And you’ve decided who you would like to leave ‘specific gifts’ of your property to. (Read more about making specific gifts when you make a Will in our article.)

What you have left of your property after your gifts is known in legal jargon used for will writing as the ‘residue of your estate’. The ‘residue’ is the term used to describe what property of yours is left over after the deduction of specific gifts, debts, legacies, tax and the expenses of administration.

If you decide not to make any specific gifts when making a Will, but instead give all of your property to one person alone, then this gift is known in Will-writing legal jargon as a ‘residuary gift’ (i.e. they will receive the whole of your residuary estate) and this person will receive whatever is left after the necessary deductions (i.e. debts, etc.) have been made.

You must make a residuary gift when making your Will, otherwise you will die partially intestate.

This means that any specific gifts and legacies can be distributed according to your wishes, but the remainder of your property, which makes up the residue, will be distributed under the rules of intestacy (outlined in our article 8 Reasons Why You Should Make a Will). This could result in a property distribution you may not have wanted.

Your residuary estate can be given to more than one person in your will but if you do so, you must state the share of the residue that each person is to receive, whether equal or otherwise.

DIY Will examples:

‘I give the residue of my estate to David Peter Ross, Susanna Hill and Nigel Jones in equal shares.’

or

‘I give the residue of my estate to my wife Gillian Ross (two-thirds share) and to my brother Richard Ross (one-third share).’

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Executors: what to do if there is a Will

Lawpack on March 27, 2020

How to probate an estate when someone dies and what to do if you’re nominated as executor in the Will.

Many executors may have been made aware of their duties before death and know where the Will is kept should the worst happen. But if there hasn’t been an opportunity to prepare before the death, then the Will must be located to determine who has been named its executor(s).

Locating the Will

If no Will is found at the deceased’s home, it may have been sent to the deceased’s bank, solicitor or Will storage company for safekeeping or to Lawpack’s Will Storage Service.

In England and Wales, the Will may have been deposited at the Principal Registry (formerly Somerset House), in which case a deposit certificate will have been issued on receipt of the Will; the Will can be reclaimed by sending the certificate to:

Record Keeper’s Department
Principal Registry of the Family Division
First Avenue House
42–49 High Holborn
London WC1V 6NP
Tel: 020 7947 7022

If a Will is found, it must be ascertained that it is the deceased’s last Will by making enquiries at, for example, the deceased’s bank and solicitor.

It must bear the signature of the deceased (in Scotland, it must be signed on every page) and of an appropriate witness or witnesses.

Find out more on what to do if the deceased hasn’t made a Will.

What to do if you find a copy of the Will

In England and Wales, probate may be granted on a copy of the Will so if you can’t find the original, you should notify the Probate Registry as soon as possible that the original cannot be found.

The Probate Registry will tell you what evidence is needed to prove that the original Will hadn’t been revoked by being destroyed before death.

In Scotland, if only a copy of the signed Will can be found, it may be possible for the executors to treat the estate as ‘testate’ and proceed to wind up the estate in accordance with the copy Will, but it will be necessary in the first instance to raise an action in the Court of Session in Edinburgh to ‘prove the tenor’ of the original signed Will using the copy.

If this fails, the estate must be treated as intestate and wound up accordingly.

What if there is more than one executor named in the Will?

If the Will appoints only one executor, or if only one person is able and willing to act, a grant of probate can be issued to one person.

If the Will appoints more than four executors, only four of them will be allowed to apply for the grant of probate.

In any estate, some of the executors may renounce their right to apply for probate. Or they may decide not to apply for the time being but to reserve their right to apply in the future so that if, for example, one of the acting executors dies before the estate has been fully administered, the executor with ‘power reserved’ may take his/her place. The same applies in the scenario where the deceased didn’t leave a will.

In England and Wales, if only one executor is taking out the grant of probate, it’s prudent to have ‘power reserved’ for the other executor(s), even if it’s not anticipated that they will want to apply at any stage.

The Probate Registry provides a power reserved form to be completed and signed by the executors who intend to reserve the right to apply for probate.

In Scotland, confirmation is always issued in favour of all executors who have been nominated and who haven’t declined office. An executor appointed in accordance with the terms of a Will is called an ‘executor-nominate’.

No matter how many executors are named, for practical purposes it’s usually easier if one of the executors undertakes the administrative tasks on behalf of them all.

The executors should meet to discuss the practical side of carrying out their executor duties. All official paperwork must be signed by all executors, even if they agree that one of them will deal with the day-to-day administration. This isn’t the same in Scotland where the application for confirmation (C1 Account) only needs to be signed by one executor.

Get expert help with applying for a grant of probate with our Probate Assist service.

 

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How to appoint an executor and trustee in your Will

Lawpack on March 27, 2020

An executor is a person named in your Will who has the responsibility of managing your property after your death and distributing that property according to the terms of your Will.

The executor will have to collect in and preserve your assets, pay all relevant taxes and liabilities, obtain a grant of probate, sell those assets that need to be sold, and finally distribute your assets to your beneficiaries.

In some instances, money may not be paid directly to all your beneficiaries and may be held for their benefit. This is most common where the gift is to minor children or to someone pending their fulfilment of a condition, such as reaching a certain age.

If this happens, the money will be paid to the person or persons you appoint as trustee.

We recommend that you appoint the same person or persons as both executor and trustee when writing your Will.

Trustees are then responsible for holding the monies and looking after them for the benefit of the beneficiaries. They are entrusted with investing the monies and generally safeguarding them.

In some instances, trustees have the ability to distribute all or part of the monies to the beneficiaries or use them for their benefit, if they think that this is in the interest of the beneficiaries.

You must appoint at least one executor to carry out the instructions in your Will and it’s usual to appoint two. Two executors should be appointed if the Will contains a gift to children, some of whom may be under 18 when you die.

You should also appoint a replacement executor in case one of the named executors is, for any reason, unable to act.

The primary concern in selecting executors for your Will is that they should be reliable and trustworthy in carrying out your wishes. It’s also desirable that at least one executor should know the beneficiaries of the Will personally.

Often the best way is to appoint the person who stands to benefit most from your Will as one executor, and another relative or close friend as the second executor to assist or to take over should the first be unable to act.

A person cannot act as executor for your Will while under 18. The duties of an executor need not be difficult and your executor can use a solicitor to process the necessary probate forms.

Always check with your proposed executors before making your Will to be certain they are willing to act; a template letter to an executor is provided with Lawpack’s Last Will & Testament DIY Will Kit.

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How to witness and sign your Will properly

Lawpack on March 27, 2020

Witnesses to Your Will

To make sure that your Will is legally valid, it’s important to ensure that your will is properly witnessed.

When you’re making a Will you need two witnesses who must be over 18 and preferably neither very old nor hard to trace, in case a question should arise later concerning the validity of your Will. A blind person cannot witness a Will

Making a Will Warning:

If a person is inheriting something in your Will (called a ‘beneficiary’), it’s vital that they are not a witness to the same Will. Also, you shouldn’t use someone as a witness to your Will if they are married to a beneficiary of your Will. If either of these people do witness your Will, they will lose the benefit of their gift, but the Will itself will remain legally valid.

An ‘executor’ (someone you have named in the Will to manage your estate) or their spouse can safely act as a witness to your Will – unless they are also a beneficiary, in which case another witness must be found.

Signing Your Will

You must sign your Will in the presence of two witnesses and they must then both sign in your presence and in the presence of each other as witnesses to your signature. Neither you nor any witness to your Will should leave the room until your Will is both signed and witnessed, and you should all see each other sign the Will .

When signing your Will, use your usual signature, write in ink and date your will. Be sure that the witnesses complete their names, addresses and occupations on the Will.

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Debts aren’t written off when someone dies

Lawpack on March 27, 2020

Many relatives end up in a very difficult situation when a loved one dies leaving debts, especially if the death is unexpected.

At such a painful time, many people are reluctant to think about dealing with the debts of the deceased and how to make repayments.

Many people assume that the deceased’s debts will be written off, but this is generally not the case and the debts continue.

Dealing with a person’s assets and debts when they die

When someone passes away, a person name in the deceased’s Will – called an ‘executor’ – or the next of kin if the deceased didn’t make a Will – called an ‘administrator’ – will have to oversee the collection of the deceased’s assets to form their estate.

Whether a Will is made or not, any outstanding debts are paid out of the estate.

As part of their duties, the executor (or administrator) must collect in any money or property the deceased has left behind and cover and outstanding debts from the estate.

What to do if the debts can’t be covered from the deceased’s estate

If there are not enough assets to cover all the debts, the bills will need to be paid in order of priority, as follows:

  1. Secured debts (e.g. mortgage company) are paid first because they get their money from the security
  2. The costs of administering the estate along with funeral costs are then paid in priority to everything else.
  3. The remainder is divided in proportion to the value of the debts, i.e. if someone is owed 80% of the total they are paid 80% of the remaining assets.

The beneficiaries will only inherit what they have been left in the Will once all the accumulated debts have been repaid.

Who is liable for the debts?

No one else is required to pay for the debts unless they are already liable under the terms of the original agreement; for example, if the debt is in joint names or someone has signed as a guarantor. 

If the money left in the estate isn’t enough to cover the outstanding debt and you jointly owned a house with the deceased person, for example, you may have too sell the property to meet creditors’ demands.

What about money owed to the deceased?

It’s the executor’s (or administrator’s) responsibility to decide in cases when there is money owed to the deceased person, especially when there is a written agreement in place.

But if the borrower and the lender have agreed on the debt on a casual basis, it will likely remain irrecoverable since it could be impossible to prove.

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