What is a will?

A Will is a legal document which reflects your last wishes by allowing you to choose who receives your belongings and assets after you die.

Why make a will?

It is important for you to make a Will whether or not you consider you have many possessions or much money. It is important to make a Will because:-

  • if you die without a Will, there are certain rules which dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed
  • unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a Will, so the death of one partner may create serious financial problems for the remaining partner
  • if you have children, you will need to make a will so that arrangements for the children can be made if either one or both parents die
  • it may be possible to reduce the amount of tax payable on the inheritance if advice is taken in advance and a Will is made
  • if your circumstances have changed, it is important that you make a Will to ensure that your money and possessions are distributed according to your wishes. For example, if you have separated and your ex-partner now lives with someone else, you may want to change your Will. If you are married or enter into a registered civil partnership, this will make any previous Will you have made invalid.

Is it necessary to use a solicitor?

There is no need for a Will to be drawn up or witnessed by a solicitor. If you wish to make a Will yourself, you can do so. However, you should only consider doing this if the Will is going to be straightforward.

It is generally advisable to use a solicitor or to have a solicitor check a Will you have drawn up to make sure it will have the effect you want. This is because it is easy to make mistakes and, if there are errors in the Will, this can cause problems after your death. Sorting out misunderstandings and disputes may result in considerable legal costs, which will reduce the amount of money in the estate.

Some common mistakes in making a Will are:-

  • not being aware of the formal requirements needed to make a Will legally valid
  • failing to take account of all the money and property available
  • failing to take account of the possibility that a beneficiary may die before the person making the Will
  • changing the Will. If these alterations are not signed and witnessed, they are invalid
  • being unaware of the effect of marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a Will
  • being unaware of the rules which exist to enable dependants to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the Will could be overturned.

Who should make a Will?

Anyone. You could be young, single, without children, or have little in terms of assets, but you should still have a Will.

If your current Will does not reflect your wishes, then it can be changed. With an up-to-date Will the guarantee remains that you have complete control of who receives your assets.

What happens without a Will (Intestacy)?

Without a Will, your family may end up with an expensive legal battle in having to prove their entitlement to your assets.

The rules of intestacy mean that the entitlement to your assets depends on where the person ranks in the hierarchy of entitlement produced by the Government.

Your individual circumstances are not looked at and, more importantly, it does not matter what you have previously expressed to anyone. Your wishes are not upheld unless you leave a valid Will.

What makes a Valid Will?

This is governed by section 9 Wills Act 1837. It provides that no Will shall be valid unless:

  • It is in writing and signed
  • the signature must intend to give effect to the Will
  • Must be witnessed by two or more witnesses present at the same time
  • Witnesses must sign in the presence of the person making the Will

Once signed, the Will must be stored safely and must NOT be marked in any way as this may render it invalid such as getting married.

The Will must also be updated when your circumstances change as this may also render your Will invalid.

Where do I keep my Will?

Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep your Will:-

  • at home
  • with a solicitor
  • at a bank
  • at the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry for safe keeping.

Who are Executors?

Executors are people that you appoint to deal with your Estate after you die.

Many appoint the Solicitors who prepared their Will or someone they trust. The choice is yours.

What is the procedure if you die leaving a Will?

The Executors will obtain your original Will. They must then obtain probate so that they can deal with your assets, pay any debts or taxes from your estate and then distribute your assets in accordance with the Will.

What is the procedure if you die without a Will?

In most cases, research needs to be undertaken to determine who is entitled to the assets.

Someone needs to be appointed to administer the Estate.

Where there is a dispute as to entitlement, applications would be made under the Inheritance (Provision for Family and Dependants) Act 1975. These are often complicated and expensive cases involving Barristers to represent. Assets would only be distributed once these disputes are resolved.

What about Foreign assets?

If you have assets abroad, you should strongly think about writing a Will in the country where they are.

I only have a spouse and children, surely they would get everything?

Yes. But without a Will your spouse  could potentially only get the first £250,000 and personal chattels and a life interest in one half of the balance  with the remainder being divided equally between all the children of the deceased.

I have been in a long relationship, it is as good as being married?

It may be as good as marriage, but it is not a marriage. The rules of intestacy state that any children you have would get your assets. If you are not married or a civil partner, your partner cannot claim on your Estate unless he or she files for provision as a dependant on your Estate.

Challenging a will

A person may want to challenge a Will because:-

  • they believe that the Will is invalid; or
  • they believe that they have not been adequately provided for in the Will.

There are strict time limits for challenging a Will and if you want to challenge a Will, you should seek legal advice as soon as possible.

When do I need a new Will?

When a Will has been made, it is important to keep it up to date to take account of changes in circumstances. It is advisable for you to reconsider the contents of your Will regularly to make sure that it still reflects your wishes. The most common changes of circumstances which affect your Will are:-

  • getting married, remarried or registering a civil partnership
  • getting divorced, dissolving a civil partnership or separating
  • the birth or adoption of children, if you wish to add these as beneficiaries in your Will.

What is Probate?

The term probate means the issuing of a legal document called a Grant of Probate or a Grant of Letters of Administration authorising a person to deal with the estate (the money, property and possessions) of a person who has died.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document used when a person lacks the ability to make their own decisions.

The LPA replaces what was previously known as an Enduring Powers of Attorney (EPA). The LPA provides greater safeguards than the EPA for you when it is finally used.

Why make an LPA?

An LPA gives someone you appoint and trust (known as your attorney) the power to make decisions on your behalf when you are no longer able to.

Unlike the old EPA’s, the new LPA’s need to be registered before they can be used.