Will Archives - Emyr Pierce

Dec 6

Can I create a DIY Will?

We have just bought our first house and need to make a Will. A friend of mine has created a DIY Will using a special pack bought from a local stationery business. Is this something I can do fairly simply?

One thing you can always guarantee is that when somebody intends to make a Will they will claim it is straightforward and simple.

If this were the case then it would be perfectly in order for everyone to simply draw up their Will on the back of a cigarette packet. However, half an hour with a Lawyer specialising in Will drafting will identify many aspects that you may not have considered.

You may well have a good idea of what you want to leave – and to whom – but it is the provisions within the Will that take into account certain unforeseen circumstances or, in particular, people dying in the wrong order, which can often be critical.

Ensuring that provision is made for surviving children, even if you do not have any at the time of making your Will, along with the appointment of Guardians for young children, ensuring that your share of any joint matrimonial assets will actually end up with any children from your first marriage, (and similarly for your wife), and above all else your specific wishes recorded in a legally binding document are all critically important.

Do yourself a favour – and consult a specialist to draw up your Will. In the round it really isn’t that expensive and increasingly we are seeing more and more Estate disputes as the consequences of poor or home-made Will drafting becomes apparent.

* Emyr Pierce is Managing Director of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

Nov 8

What will happen to my parents’ Estate if they go into residential care?

My wife and I are considering selling our home and moving into my elderly parents’ house to look after them. My parents’ Will leaves their Estate to me and my sister but we would buy her share of the house on the death of my parents. How safe are we though if one or both of my parents has to go into residential care and the only asset they have is the house?

If you moved into your parents’ home it would be sensible for your parents to transfer the property into the joint names of themselves and yourselves as this would take advantage of an exemption available to your parents in that they have transferred one-half of their interest in the property to those who also occupy the same.

This could safeguard against the whole of the property being taken to pay for future care fees, as only the half which your parents retained would remain in their ownership and would technically represent the half to which your sister would otherwise have been entitled in the event of your parents’ death.

Should your parents move into care in the meantime then it may be that only the remaining half share in their name would be assessed as evidence could be supplied to show the reason why the property had been transferred into your joint names.

Should your parents die without having to go into care then you would have to buy out the remaining half of the property from your sister as, technically, the half remaining in your parents’ names would pass to your sister on their death as you had already received your share during your parents’ lifetime.

Oct 25

Who will inherit my Estate if I die without making a Will?

Will my dead husband’s children from a previous marriage inherit my Estate if I die without making a Will? I have no children and no living relatives.

Should you die without making a Will then your assets would pass in accordance with the Intestacy Rules.

If your husband was still alive then he would inherit the first £250,000 of your Estate if you have surviving children and £450,000 if you do not, which could, in turn, make its way to his children from a previous marriage in the event of his subsequent death.

On the basis that he has predeceased you then your assets will pass in accordance with the remainder of the Intestacy Rules.

Should you have no living relatives whatsoever then your Estate would pass to the Crown. If you are single or widowed, have no living relatives to include parents, children, brothers, sisters, half-brothers or half-sisters, nephews or nieces, then there is a great risk that your Estate will pass to the Crown.

It is, therefore, essential that you make a Will – even if it is to leave your assets to Charity, or your close or good friends.

Oct 25

My father held leasehold interest but my mother held freehold interest – what happens now?

My mother has recently died. She was the owner of the freehold interest in the property but on receipt of the Title Deeds we note that the original leasehold interest remains in the sole name of my late father who died 10 years ago. What do we need to do?

South Wales has a number of properties that were originally leasehold but as the years have passed occupiers have purchased the freehold interest.

It is often the case that on acquiring the freehold the freehold title will be registered separately to avoid having to merge the two interests and pay a higher Land Registry fee. This gives rise to potential difficulties if the property was originally in the sole name of one only of the spouses.

In this case that spouse has since died and the surviving spouse has purchased the freehold interest in her sole name. This leaves the freehold interest in the wife’s name and the leasehold interest in the late husband’s name.

A Grant of Representation will be required for each Estate in order to properly deal with the interests in the property that the respective spouses owned. This will deal with the deceased husband’s leasehold interest in the property. It will not take too long, but will inevitably delay any on-going sale.

It may be that the executors of each spouse’s Will may be the same and accordingly a Grant of Representation to each Estate can be obtained by the same individual.

Sep 23

My father died a widower without leaving a Will. Do his estranged sons have a claim?

My father died a widower without leaving a Will. I thought I was his only child but it appears he had two sons by a previous marriage who are making a claim against his Estate, which includes two properties. He had no contact with them in more than 40 years. Do they have a claim?

Unfortunately, your father died without making a Will and his spouse had predeceased him. In the absence of a Will he will be deemed to have died Intestate.

In an Intestacy assets will pass in accordance with the Intestacy Rules which is an attempt to anticipate what the deceased would have done had he made a Will. The order of beneficiaries entitled will dictate who is entitled to his Estate.

As he died a widower, but leaving children, then ALL of his children will share his Estate equally. Sadly, despite not having seen anything of his other children for over 40 years they are undoubtedly his children, just as you are. Therefore, all three of you will be entitled to share your father’s Estate equally.

In other words all three of you are entitled under the Intestacy Rules and his two sons need not necessarily make a claim against his Estate as they are absolutely entitled in any event.

This is different to two estranged sons who suddenly make a claim against an Estate where there may have been a Will leaving everything to you. In those circumstances their claim would not succeed unless they could show that they were dependants of your late father and, after no contact in 40 years, this would be impossible to prove.

It is examples such as this which emphasises the importance of making Wills – particularly if you have children by a previous marriage or previous relationship.

Aug 19

Is a Will valid if it is not signed?

My wife’s uncle has recently died. He intended to leave a Will and had left a piece of paper in his writing desk with details of what he wanted to happen to his Estate, but while the draft was dated it was not signed. He was childless and his parents and siblings are deceased. Would this draft act as his Will?

No. For a Will to be valid it must be signed by the deceased, who must sign in the presence of two independent witnesses, who themselves must also sign in the presence of the Testator (person making the Will) and both witnesses must state his or her name, address and occupation. The Will must then be dated with the date of signature of all parties.

A Will must also appoint individuals to administer the Estate, called Executors. The piece of paper in this case may represent an expression of wishes and, while dated, it was not signed and therefore has no validity whatsoever.

In the absence of a valid Will, the person making the Will will be deemed to have died Intestate and the order in which beneficiaries are entitled to share his Estate would be in accordance with the Intestacy Rules. On the basis that the deceased was widowed and his parents and siblings had predeceased him, and he had no children, this would result in nephews and nieces being entitled to the Estate.

Accordingly, your wife, as a niece of the deceased, may well be entitled to a share in her late uncle’s Estate.

* Emyr Pierce is Managing Partner of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

Mar 31

Should I change house deeds post-marriage?

My partner and I bought a home together two years ago. We got married six weeks ago and I am wondering whether I need to change my name on the house deeds etc. What documents will I need to change.

No, there is no need for you to make any changes unless you particularly want to. The title to the property will no doubt be registered at the Land Registry and all you need to do in the event of a future re-sale is to produce a certified copy of your marriage certificate showing the change in the name of the female spouse from her maiden name by way of proof that the parties are one and the same as those registered on the title.

You can, of course, forward a certified copy of your marriage certificate to the Land Registry, but this will need to be accompanied by a formal application form with which you are not familiar and which you may need to pay a Solicitor to complete on your behalf. Quite frankly, this is a total waste of money and is not essential.

What may be more important, since your marriage, is to review the manner in which you own the property. Had you bought the property as partners, the property may be registered in your joint names as Tenants in Common rather than Joint Tenants in which case you will now need to make Wills should you wish to ensure that the property will definitely pass automatically to the surviving spouse. Indeed, a Will, now that you are married, is something you should consider in any event.