Probate can be a complex matter. During your lifetime there will naturally be times when you need to revisit the wording and content of your will and think extra carefully about your estate planning. This affects planning for both the known and unknown. It also means considering how your estate will be dealt with in the event of you surviving or failing to survive your partner. There are some events in life we hope we never have to face but proper estate planning should, nevertheless, take into account a number of worst case scenarios.

Did you know – Probate facts

Here are just a few facts that you may not be aware of but which could have a huge impact on your will when considering the following. Some of them may come as a complete surprise.

Fact 1. Did you know that getting married or entering into a civil partnership usually invalidates a will?

Unless a will is written in anticipation of marriage or civil partnership and the will contains clauses making it clear the will is to continue, it will automatically be revoked.

Fact 2. Did you know it is possible to have two valid wills?

If you make a new will or amend an existing will with a codicil, the new will or codicil should contain a clause revoking the previous will or specific provisions of the previous will. If there is no revocation clause any provisions in the earlier one that are inconsistent with the new one are revoked, but consistent clauses remain valid. Therefore, it is possible to have two valid wills!

Fact 3. Did you know what happens to your will on divorce or annulment?

The issue of a ‘decree absolute’ revokes any bequests to a previous spouse or civil partner and their appointment as trustee or executor of the will. Effectively, the former partner is treated as if they had died at the date of the decree absolute. The rest of the will remains valid though.

Fact 4. Did you know the effect of a survivorship clause in a will?

For a gift to succeed, a beneficiary must survive the testator even if only for a few hours or even minutes. If the beneficiary does predecease the testator then the gift is said to lapse and will become part of the residuary estate and if that fails will be dealt with under the intestacy rules.

An example of how the addition of this clause would make a difference is that of Mary (26) and George (28) who both die in a plane crash and it is unclear who died first. Both have wills leaving everything to each other, they have no children but both have mothers.

As George is older, he is deemed to have died first and his property passes to Mary and forms part of her estate. Mary’s gift to George lapses and under the intestacy rules everything passes to Mary’s mother. Had George included a survivorship clause his estate would have gone to his mother!

These are just some of the scenarios you should think about when writing a will and when planning your estate. For more help contact one of our Probate Practitioners for further advice.

Amanda Ireland, Leigh Jones, Alison Collier.

For a list of probate terms please visit our Probate glossary.

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