New plans for a new life phase: estate planning after bereavement

 16 November 2021
New plans for a new life phase: estate planning after bereavement

We all know that at some point, we will lose our parents. For the older generation who have been married or together for many years, this can mean that one parent is suddenly living alone. This can be a daunting and often worrying period for a widow or widower, with a plethora of paperwork including the will and probate to be sorted, running alongside their grief and loss.

At Panthera Estate Planning, we have had personal experience of this, and we empathise with both the parent left behind and the children or friends acting as executors. May we reassure you that the cloud of sometimes overwhelming sadness will gradually lift, and life will find a new rhythm for the family and your loved one. It just takes time.

 

Estates and probate

Probate is technically a legal right rather than a process, as the Gov website explains:

“Probate is the legal right to deal with someone’s property, money and possessions (their ‘estate’) when they die. You should not make any financial plans or put property on the market until you’ve got probate.”

The rules on probate are different in the various parts of the UK.

Probate must be preceded by a valuation of the estate for Inheritance tax purposes, usually by an executor named in the Will. All executors named in the Will should agree on which one of them then applies for probate. You can apply yourself or use a probate practitioner (usually a solicitor) to apply for you. If there is a Will, you need to send it with your probate application.

 

Mirror Wills and new Wills

Many married couples opt for so-called mirror wills. These are basically identical Wills where one parent leave their entire estate, bar a few bequests, to the surviving partner. These Wills usually have a clause that states if the person making the Will dies after the other mirror will holder, then the estate will be divided according to their stated wishes.

However, this is not always the case. The Will of the person who died may ‘stand alone’ and not mirror their partner’s Will. What’s more, the provisions made in the deceased’s Will may not take account of the changed circumstances of the surviving partner. For example, the widow or widower may wish to downsize to a smaller, more manageable home, or move in with relatives, or move into care

Even if they stay in their home, they might wish to make new bequests in the light of their changed circumstances. They may also become substantially better off financially in terms of assets, as the new sole owner of their home and all formerly shared assets, for example. Their own estate is now considerably more valuable, and that requires protecting and managing as part of their estate planning moving forward.

 

New phase, new Will

That’s why it’s important that, as soon as they feel able, the bereaved partner should think about making a new Will. It will be a difficult task, and there will be emotional issues it’ll raise, so it’s important to assess when the time is right for your loved one, and not in any way ‘push’ the decision.

‘Pushing’ may be perceived as some form of undue influence of coercion. If a Will writer or a witness believes in any way that the person making the will is being coerced or unduly influenced, they can refuse to make or witness the will. This is where a Will Clarity statement and declaration come into their own. (See our blog on Will Clarity statements for more details )

 

What is undue influence?

As one firm of solicitors explains:

“Undue influence deals with situations where a testator (the person making a will) may have been pressured or coerced into changing their will. Coercion is pressure that overwhelms the testator's own wishes without completely changing their mind. The courts will consider the physical and mental state of the testator as this will show how susceptible they may be to coercion and manipulation.”

 

Grounds to contest a Will

It’s important to realise that in law, undue influence, lack of mental capacity and lack of knowledge or approval are all grounds that can be used to contest a will. So, it’s vital that a Will is written properly, witnessed according to the current rules, and overseen by an impartial and experienced Will writer.

At Panthera Estate Planning, we are happy to help with any aspect of estate planning when you or your loved one feels up to it. Members of our team have been through this themselves, so we understand the emotions and feelings involved, as well as the legal requirements.

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At each stage of the process, Paul Hammond - the Directory of Panthera, explained in simple understandable language what was going to happen and if there would be any complications. None happened, I am sure, because of his eye for detail.

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