5 Common Misconceptions About Wills

1. “My partner/common law spouse will inherit everything automatically”

It is a common misconception that partners who co-habit for a number of years form a ‘common law marriage’ and have the same statutory rights as a married couple. This is not the case.
In England and Wales, a ‘common law marriage’ is not legally recognised and this can cause huge problems for unmarried people who die intestate (without a will). In this instance, the Intestacy Rules would be applied to your estate and the Government would decide how it is to be shared. If you have children your estate would pass to them. If not, your estate would be divided between family members. Without a will you carry the risk that your partner will receive nothing.

2. “I have a Living Will, I don’t need another one”

A Living Will is a term used for a Lasting Power of Attorney, which allows you to grant someone the power to make decisions on your behalf if you are no longer able to. They only apply during a person’s lifetime and therefore it is not a document that allows you to dispose of your estate. To ensure that your possessions are shared according to your wishes you should draw up a Last Will and Testament.

3. “My family will look after my children”

It is a commonly held belief that family members have the automatic right to look after children following the death of a parent, however this is not correct.
If you have minor children, a will allows you to appoint guardians to take care of them if you die before they reach 18 years old. Without appointed guardians in place the future of your children would be in the hands of courts. This could result in your children being cared for by someone you would not have chosen yourself.

4. “My debts die with me”

Any debts remaining at death (including mortgages, credit cards, loans etc.) will be payable from your estate. They do not die with you.
Once all debts have been paid, the remainder of your estate can be divided in accordance with your wishes laid down in your will.

5. “I have recently been married and already have a will so I don’t need to write a new one”

Wrong. Marriage revokes/invalidates any previous will, unless it was made in contemplation of marriage. Surprisingly, divorce does not have the same effect on your will. Instead any gifts made to a previous spouse would no longer be valid and would instead pass to other beneficiaries. It is therefore very important to review a will following a marriage or divorce to ensure that it still meets your wishes.