Mythbusters

Things you may have heard

Like lots of things related to the law, along with the facts there are a great many fictions. Sometimes it’s difficult to tell them apart, but it’s important to be able to do so.

The biggest one is often, ‘Wills are too complicated for me to understand’. Not true! And that’s the whole point of Bequeathed. Most people are able to understand their own affairs, and making a will often needs no more understanding that that.

So in the spirit of ensuring that wills are not cloaked in mystery, we’ve taken the opportunity to explode a few of the more common misunderstandings about what you can and can’t do in a will, and when leaving instructions to loved ones.

So if you want to be buried at sea, but think that you can’t because you’re not a sailor – think again. Then we’d suggest that you think a third time – because there’d have to be a licence and it could only take place at specified sites near Newhaven, Tynemouth or the Isle of Wight.

And if you were planning to leave a fortune to your pet, you’d better change your plans. Your cat may strut about as if it owns the house, but it can’t actually own a thing. The nearest that you could do is to leave some money in trust to support the pet during its (presumably pampered) lifetime.

Now, for some other myths that may need clearing up, read on...

Only a lawyer can draft your will

Not true.

Anyone is legally allowed to draft their own will, provided that they are adults with sufficient mental capacity. Neither is there a rule that professional will-writers have to be lawyers, though it makes sense to check their competence. It may seem like a serious thing to undertake yourself, but that doesn’t mean you can’t do it. Sometimes, naturally, there are circumstances when you ought to have specialist advice: for example, if your estate is particularly large or complicated, or if you have foreign property, or you want to create any special kind of trust. And if your will is one of those that needs a professional's expert advice, we are happy to refer you to one of our trusted panel law firms.

But most estates are not difficult to describe, and most do not raise any significant tax issues. Most of us are perfectly capable of making our own arrangements, such as taking the online interview with Bequeathed.

For more information, see our page Preparing a will.

If you die without a will, your partner gets everything

Not necessarily.

If you die intestate - without having made a valid will - your spouse or civil partner will inherit the first £250,000 of your estate, and then half of the rest (if you have children). If your other half is not your spouse or civil partner, they don’t automatically get anything.

For more information, see our pages Do I need a will?

You only need a will if you’re rich

This is a common misconception which is entirely wrong!

Yes, you need a will if you’re rich but you also need a will if you’re not rich. Everyone needs a will. A will ensures that your estate is distributed after you die to the people you have chosen, rather than leaving it to the law. The law will automatically pass everything to your spouse, civil partner or children (if you have any), so if you have anyone else in mind it is important that you make a will to ensure the right people benefit after your death.

It may be that your estate is more likely to be complicated if you are well-off and have more assets of different kinds. If that's the case you should probably get expert legal advice. Use our chat facility to ask us to put you in touch with one of our trusted panel firms.

For more information, see our pages Do I need a will?

You can cut your children out of your will

There is nothing to stop you cutting your children out of your will.

You’re free to write your will however you wish. But you need to be aware that close family members and dependants may be able to challenge your will and make a claim against your estate after you die if you haven’t left them adequate provision. What constitutes ‘adequate provision’ depends on your precise circumstances. At the very least your will should be explicit that you are doing so and you should also formally record your reasons for doing so to reduce the likelihood of the will being challenged in the future.

If you really want to disinherit your children or other close family members - and we don't recommend it - you should get expert legal advice. We can put you in touch with the team at one of our recommended panel firms to help.

For more information, see our page Can you disinherit family and dependants?

A mirror will is a special sort of will for couples

Sorry...

There's nothing special about mirror wills. They're simply two separate wills which match each other, usually made by two people who wish to make essentially the same provision for each other. Each person makes their own separate will but the two wills 'mirror' each other in terms of their contents.

However, mirror wills may not be suitable for couples in second marriages or civil partnerships, especially if either partner has family from a previous relationship. If you want to make sure, in that case, that your wills give effect to what you both want and agree, then it's worth seeking expert legal advice. Our panel firms specialise in helping people organise complicated affairs in a straightforward and reliable way: use our chat facility and we'll put you in touch.

For more information see our pages Mirror wills.

Two people can make a joint will in a single document

Afraid not.

A person can only make a will for themselves. Even if you are planning matching (or 'mirror') wills for you and your partner, they are separate. And just to make the point even clearer: if you did try and make a 'joint will' then the law would either reject it or treat it as two documents, which would have to go through probate twice. Our advice is: don't try it.

For more information see our page Joint wills.

A beneficiary can't be an executor

This isn’t true.

There is nothing to stop you choosing a beneficiary of your will to also be an executor of it. In fact, this is very common as many people choose their spouse or civil partner, or perhaps one or more of their children, to be their executors and these people are often the primary beneficiaries of the estate as well. However, one person cannot be both a beneficiary and a witness.

For more information on how to choose an executor, see our page Choosing an executor.

Godparents are automatically your children’s guardians

If you’re a godparent, you may be relieved to hear that this isn’t the case!

A guardian needs to be formally appointed by a child’s parents in a legal document (e.g. a will, codicil, etc). They will then be responsible for the child’s upbringing until they are 18 in the unlikely event that both of the child’s parents (or those with parental responsibility) die. In contrast, a godparent is someone who is chosen by a child’s parents to present them at their baptism and who promises to support them (emotionally, not financially or legally) in their religious education. As parents tend to choose close family members or friends to be their children’s godparents, they may also be appointed as their guardians but the appointment is by no means automatic.

For more information, see our page Appointing a guardian in a will.

Marriage or civil partnership doesn't revoke a will

Wrong.

Any will you have is automatically revoked by a marriage or civil partnership. The only exception is if you have made a new will in contemplation of marriage or civil partnership (i.e. a few weeks or months before the ceremony takes place) and the will specifically states that it is not to be revoked.

For more information, see our page When should I review my will?

Your debts will be cancelled on your death

If only this were true – but it isn’t.

There is also a common misconception that any outstanding debts will have to be paid for by your family. This is not entirely true either.

The value of any outstanding debts and liabilities (including things like credit card bills and mortgages) at the date of your death will be deducted from the value of your estate. So, in some cases your family may receive less inheritance if you have debts when you die and they are the main beneficiaries of your will but they do not have to settle them directly.

For more information, see our page What happens to debt when you die?

You own the music, books and films you’ve stored online

Yes and no!

Although you do own music, books, photos etc that you have stored online (known as digital assets), what you don’t own is the storage facility – this is owned by the online service provider. This is where potential difficulties arise when you die, because the online service provider may not allow your personal representatives access to your account as it may breach their privacy policy. If you're still concerned about this, you can get expert advice from one of our panel firms. Talk to us via the chat box and we can put you in touch.

For more information on how you can preserve your digital assets after you die, see our page Digital assets and estate planning.

If the will doesn’t deal with your whole estate then it's completely null and void

No, this isn’t the case.

If your will doesn’t deal with your whole estate and there is anything left after the provisions of your will have been implemented by your executors, these remaining assets will be managed according to the intestacy rules. To ensure this does not happen, it is a good idea to identify a beneficiary of your residuary estate (everything in your estate that you haven’t already specifically gifted in your will).

For more information, see our page Residuary estate.

(If a term is in bold, that means it's in our Glossary.)