Nobody wants to think about writing a will. It can be a distressing time. But, it’s essential to have a will in place that gives you the peace of mind that your wishes will be carried out upon your death. This article will answer some of the most frequently asked questions we get about wills and probate here at Setfords.

What is a will?

A will is a legal document that you can use to specify who will receive your assets after your death. These assets can include property, possessions, and money. However, a will can take care of many other things for example, who should take care of your dependent children, the protection of inheritance from inheritance tax, care home fees, or second marriages

Do I need a will?

It is highly recommended for all adults to write a will; it’s a common misconception that only those with lots of complicated assets need one. However, you may be particularly interested in writing a will if:

• You have young or vulnerable children who will need to be cared for in the event of your death, or you may want someone else to look after their inheritance because they would be unable to handle it
• You wish to leave assets, possessions, or property to somebody who is not your partner (married or in a civil partnership) or child
• You have a child who is vulnerable due to disability or other circumstances
• You have concerns about protecting your assets from inheritance tax or care home fees
• You have children from a previous relationship and wish to look after your current partner but ultimately want to allocate assets to your children
• You have interests in a business and wish to make alternative provisions

Why do I need a will?

There are several benefits to having a will. The main one is that it allows you to dictate who will benefit from your assets. If you don’t have one, legal rules in place in  England and Wales dictate who will inherit your estate. You will also have an Administrator appointed that will deal with your estate. If you have any dependent children, a legal guardian may be selected for them as you won’t have specified a choice in your will. This may not be what you would have wanted, but without a legal will in place, the law will decide for you Having a will is particularly useful if you wish to leave assets to a partner you are not married to or in a civil partnership with, leave money to charity, or leave assets to anyone who is not your partner or child. As stated above, a will is also useful for many other reasons, not just who inherits your estate.

What is the law of intestacy?

The law of intestacy sets out how your assets will be distributed if you die without a will. According to a set order, your estate will be shared out between your surviving family members. This order is as follows:

1. Spouse or civil partner
2. Children, or grandchildren if their parent has passed away
3. Parents
4. Siblings
5. Grandparents
6. Aunts, Uncles, and other family members

If you have both a spouse or civil partner and surviving children, your partner will receive the first £270,000 of the estate and personal possessions. They will also receive half of the balance of the estate. Your children will inherit the remainder of the estate after this, in equal shares.

If you have no surviving children, grandchildren, or great-grandchildren but have a spouse or civil partner, they will inherit everything.

If you have no surviving spouse or civil partner, any children (or grandchildren if their parent has died) will inherit the whole estate equally.

If you have no surviving blood relatives, the Crown will inherit the whole of your estate.

Who can make a will?

Anybody who is 18 or over can make a will. Bear in mind that there are other requirements beyond this in order to make a will valid, which are detailed below.

Can I write my own will?

It is possible to write your own will. However, this is usually advised against unless it will be very straightforward. In most cases, having a solicitor draw up your will, or at least check it over, will ensure it is valid and avoid any problems that may occur for your beneficiaries after your death.

What are the legal requirements for a will?

There are several requirements to make a will valid and legally binding. These are as follows:

• You must be aged 18 or older
• You must have made the will voluntarily
• You must make your will in writing
• You must be of sound mind
• Two witnesses (aged 18 or over) must witness your signing of the will
• The two witnesses must also sign the will in your presence

What is a will beneficiary?

A beneficiary of a will is someone who will ‘benefit’ (i.e. receive assets) from somebody who has died.

They can be specifically named, or included but not named directly (such as ‘my children’ or ‘my grandchildren’).

What are the executors of a will?

The executors are one or more people who are named as such in the will. They are responsible for dealing with the person’s estate once they have passed.

How many executors can I have?

You can appoint up to 4 executors. It is often recommended to have more than one executor to share the responsibility, or appoint substitute executors in case one of them dies before you.

Can I appoint a professional executor?

Yes, appointing a professional executor, such as a solicitor, is possible. You may wish to do this if you have a complicated estate, do not want your family to deal with it, or you have nobody you would feel comfortable appointing as an executor. Bear in mind that this is a service that you will have to pay for, usually out of your estate once you have passed away. Solicitors will usually charge either an hourly rate or agree upon a fixed figure based on the value or complexity of the estate.

What happens if I don’t appoint an executor?

If your will does not specify your executor, the law sets out which persons are eligible to make an application to act as the administrator of the estate. This may not be someone you would want dealing with your estate and it can also cause delays, so it is always a good idea to appoint an executor of your choice.

What should I provide for young children in my will?

If you have dependent children, it is essential to make provisions for their care in your will. The main point you should provide for is appointing a guardian for any of your children under the age of 18. If you do not do this, the Court retains overriding decision making. It should be noted that grandparents do not have parental responsibility and may have to apply for a residence order.

Most people also choose to make financial provisions for their children’s upbringing clear in their will to ensure that their estate will cover this if the worst happens, and appoint Trustees to look after their children’s inheritance until they turn 18 or 21 (or older!).

Where should I keep my will?

There is no legal requirement for where to store your will. But, it’s vital that it is kept safe but still easy to locate in the event of your death. Some people choose to keep their will themselves, while others store it with a solicitor, will writing service, or the Probate Service in England and Wales. These services come at a cost but ensure that your will is kept safe from destruction and accessible.

You should never keep your will in a bank safety deposit box, as it will be inaccessible to anyone but you, even in the event of your death, without probate. And, probate cannot be granted without your will, which can make things very complicated.

Why does a will need to be witnessed?

The purpose of the witnesses is to ensure that the will is signed by the same person that made it and that they have testamentary capacity. This means that you have the legal and mental capacity to make the will. The witnesses will have to sign the will and provide their name, address, and occupation, but they won’t need to read it nor know what is in it.

What is testamentary capacity?

Testamentary capacity is a legal term that describes your legal and mental capacity to make a will. Typically, you are considered to have testamentary capacity if you:

• Understand the total value and extent of your property
• Understand that you are making a will
• Understand who will be inheriting your assets
• Understand who the people closest to you are (i.e. the people who are likely to expect to inherit from you)
• Are not suffering from any delusions making you act differently from normal

Can my will be challenged or contested?

Yes, certain people can contest your will. These people include

• Your spouse or civil partner
• Your child
• A cohabitee if they have lived with you continuously for two years immediately before your death and can prove financial dependency
• Your former spouse or civil partner if they have not remarried
• Any person who immediately before your death was being maintained by you

However, a will can also be contested if there is:

• Lack of testamentary capacity, i.e. you were not of sound mind when making the will
• Undue coercion, i.e. you have been manipulated into making a will that involves unfair or invalid terms
• Lack of due execution, i.e. the signing of your will has not been witnessed by two separate formal witnesses
• Fraud, i.e. the will has been forged, either with false terms or a forged signature

If you wish to contest a will, you must do it as soon as possible after the date of death or within six months of the issue of a grant of probate.

Why should a solicitor write my will?

Writing a legally binding will can be tricky, which is precisely why it is advisable to have a solicitor draw one up for you. They will make sure it is legally binding, that your assets will go to the people you want them to go to upon your death, and that all of your assets are dealt with appropriately. Do not worry if your situation is complex, your solicitor is experienced and will advise you on what to do to ensure you and your family get the outcome you desire.

How many copies of a will should be signed?

You and your witnesses should sign only one original copy of your will. You should NOT sign any subsequent photocopies, to reduce the risk of confusion.

Does a will expire?

No. Once your will has been written and signed, it technically lasts forever. It does not expire after a certain amount of time. However, if your circumstances change, it is usually advisable to update or rewrite your will as soon as possible to account for any changes. If you were to die without updating your will to reflect your new wishes, it is likely that they will not be upheld. We usually recommend reviewing your will at least every five years as circumstances change.

When should I write a will?

If you do not already have a will, there are certain points at which you may want to consider writing one. For example:

• When buying a home
• After marriage or divorce
• After having children
• When starting a business
• When growing a business and your business partners are not related
• If you have a vulnerable child
• If you have concerns about protecting inheritance for your loved ones

These are all life events that may affect your assets and who you would like them to go to in the event of your death, so it is typically advised to update your will promptly if you go through any of them.

Will my spouse or children automatically inherit?

If you do not have a will, any surviving spouse/ civil partner and children will stand to inherit from your estate. Visit the question ‘What is the law of intestacy?’ to find out more.

When writing a will, it is usual for most people to ensure their spouse/ civil partner and children will inherit. However, if you have a legitimate will that does not make provisions for them, they will not inherit anything. However, they may feel they have a claim to part of your estate and so may attempt to contest it after your death. Solicitors will advise you on how best to protect your estate from someone contesting your will and to avoid any disputes once you have passed.

Bear in mind that if you have a partner and you are not married, or in a civil partnership, they will NOT automatically inherit any part of your estate under the law of intestacy. So, you must have a legitimate will that sets out what assets you wish to go to your partner in the event of your death, especially if you are not married or in a civil partnership.

What happens if I pass away without a will?

If you die without making a will, the law of intestacy will come into force to decide how your assets are divided, who your beneficiaries are, and provisions for any dependent children. Find out more about this by visiting the question ‘What is the law of intestacy?’ above.

Will my estate or beneficiaries have to pay inheritance tax?

Whether your estate and/or beneficiaries have to pay inheritance tax and how much they pay will vary. It depends on the value of your estate and how your assets are gifted to the beneficiaries.

In England and Wales, as of April 2022, an individual can pass on up to £325,000 worth of assets without any inheritance tax having to be paid. This is known as the Nil Rate Band. So, if your entire estate is worth less than this, none will be paid at all. If your estate is worth more than £325,000, the remaining portion is usually charged a 40% inheritance tax. However, inheritance tax is a complex area and your estate may benefit from additional tax allowances. Your solicitor will be able to advise you further, as every situation is different.

What happens if one of my beneficiaries dies before me?

If one of your beneficiaries dies before you do, their share of the assets usually goes back into the estate. Then, it will be redistributed among the rest of the beneficiaries. However, if the beneficiary who passes before you is your direct descendent, their portion of the estate will pass onto their children if they have them. If you set out specific arrangements in your will for what to do with a beneficiary’s portion of the estate if they pass before you, this will be followed.

What should business owners consider in their will?

Most people fail to consider their business or forget that the business interest is an asset of the estate. It is essential to have a will that sets out what you want to happen to your shares and interest in the business upon your death.

This is a complex area and depends on the type of business involved. If you do not make appropriate provisions for your business, your death can have a serious impact on the business or the remaining business owners. If you are a business owner, your solicitor will be able to advise you on what provisions you may wish to make in your will and can also recommend other actions you may wish to take, which would not be included within a will.

Can I make a provision for pets in my will?

You can make provisions for your pets in your will. For example, you may want to name a friend, relative, or charity who you wish to take care of them in the event of your death and leave money for their keeping.

Do I need a will if I am unmarried and want my long term partner to be a beneficiary?

Yes. Under the law of intestacy, your partner won’t automatically benefit from your estate unless you are married or in a civil partnership. So, if you are unmarried and wish for them to benefit or for example, not be asked to vacate a property you own, you will need to have a will that sets this out alongside what you want to leave to them. If they do not inherit from your estate and have been living with you continuously for a period of two years before your death, they could pursue a claim against the estate.

Can I make changes to my will?

Once your will has been signed or witnessed, you cannot change it unless you make a new will or add a codicil, an official amendment. Both options will need to be signed and witnessed again, but there is no limit to the number of times you can amend it. A codicil may be used for a minor change, but a new will is usually required for more detailed updates.

Does my civil partner have the same rights as a spouse in my will?

Yes, civil partners and spouses have the same rights when inheriting assets and where the law of intestacy is concerned. However, a partner with whom you are not married or in a civil partnership does not have these rights. You will have to make specific provisions for them in your will if you want them to inherit from you. See ‘Do I need a will if I am unmarried and want my long term partner to be a beneficiary?’

What is probate?

In simple terms, probate is the management of an estate after a person’s death. This includes dealing with the assets,  paying any taxes or liabilities owed, and dividing them according to the person’s will. The executors of the will are the ones that deal with this. It is a responsible task and you may wish to appoint people who would be capable of dealing with institutions and paperwork!

The Will nominates the executor but permission to take action is through an official Court document which is called a Grant of Probate. A Grant is usually required where there is a property or cash exceeding £25,000-£30,000 (depending on the requirements of the financial institution). Once all assets have been dealt with and liabilities paid, the executors will pay out the net estate to the beneficiaries and probate can end.

Can my will be changed after my death?

In some cases, yes. A Deed of Variation allows a beneficiary to change their entitlement. They can only amend their share of the estate, but other heirs or the executors may need to agree if the proposed change would affect them. And, you cannot give yourself a larger share of the estate unless it is coming from another beneficiary who has agreed to it.

There are a few reasons why beneficiaries may apply for a Deed of Variation, including:

• If the will doesn’t include children or grandchildren born after it was written
• For tax purposes
• You would like all or part of your share of inheritance to go to someone else
• You would like all or a portion of your share to go to charity
• As a collective, you would like to change the distribution of the estate so everyone gets an equal share

What is a will trust?

A will trust is an arrangement that you can detail in your will to come into effect after your death. Put simply, a trustee is in charge of the trust on behalf of others. It allows the beneficiaries to benefit from assets without being the legal owner. These people could be named individuals, a group of people (e.g. ‘my grandchildren,’ which also allows you to provide for unborn children), or an organisation, including charities.

People may choose to use will trusts to provide an income for their spouse; ensure that their assets only pass to their biological children if their spouse was to remarry; fund education for their descendants; provide for vulnerable beneficiaries; protection from care home fees or tax purposes. There can be tax benefits to putting your assets into a will trust. Furthermore, there are different types of will trusts, and the one that is best for you will depend on several factors. Your solicitor will be able to advise you on this.

What should I do if I’ve lost my will?

If you have lost your will, there are several actions you can take. If you wish to update your will, you can write a new one without locating the old one. The new will can stipulate that any previous wills are no longer valid.

However, if you cannot find your will and do not write a new one, you are likely to be considered as having died intestate. This means that the law of intestacy will come into force. Visit the question ‘What is the law of intestacy?’ above for more information. It will also cause difficulty for your loved ones when you pass, as they will have to try and locate it which will take time and cause delays and costs.

So, if you have lost your will, it’s a good idea to write a new one as soon as possible to make sure your wishes will still be upheld.

What happens to my will if I get divorced?

A divorce doesn’t mean that your will is invalid. However, your ex-partner will no longer be a beneficiary unless your will explicitly states that they can still benefit in the event of your divorce. They will also no longer be able to be an executor or trustee of your will.

If your ex-partner is still in your will upon your death, it will be treated in the same way as if they had died on the date your marriage legally ended. So, their share will automatically pass onto the next beneficiary who is entitled to it. If your will states that everything was to be left to your ex-partner, the law of intestacy will be applied to decide who will inherit instead.

So, if you get divorced, you may decide to rewrite your will to ensure that the assets that would have gone to your ex-partner go to the alternative beneficiaries of your wishes. If Decree Absolute has not been pronounced but you have separated, your ex will still be entitled to inherit under your will or intestacy rules and you may not want them to do so. It would therefore be advisable to make a new Will.

Can I leave money to charity in my will?

Yes. It is common for people to leave gifts to a favoured charity or charities in their will. It’s a great way to provide a lasting legacy for a cause that is important to you, and it can also reduce the amount of tax paid on the rest of your estate.

You can leave a specific sum, a particular asset or property, or a share of your residuary estate (what is left after other gifts, taxes, and costs have been paid) to a charity. As long as you have made sufficient financial provisions for any dependents, you are free to leave as much of your estate to charity as you wish.

Do my spouse / civil partner and I both need a will?

It is a common misconception that a married couple or those in a civil partnership do not need two separate wills. It is usually recommended that you and your spouse or civil partner have different wills.

The advantages of two separate wills mean that each partner can specify what they want to do with their possessions and assets. This can be particularly useful when one or both partners have children from a previous relationship.

While it is possible to have a joint will, it will be treated separately after each partner’s death, so there is not usually a benefit to having one. If you have separate Wills but they include similar clauses, they are known as ‘mirror wills’ as they reflect one another.

After one spouse dies, the surviving spouse may wish to change their will later on. A clause can be added to prevent this but it is not usually advisable to do so. If you want to protect assets as inheritance for your children and benefit your spouse but prevent your spouse changing their mind if they remarry, your solicitor can advise you.

Does my UK will cover assets or property I own abroad?

If you are a UK citizen with assets abroad (such as a holiday home), you must consider the rules and laws in the jurisdiction in which you hold the assets. As such, you may need to have a will both in the UK and abroad.

Furthermore, succession laws abroad may conflict with your wishes for the assets upon your death. And, your beneficiaries could be required to pay inheritance tax both in the UK and abroad, depending on the location.

So, it’s a good idea to get legal advice from a lawyer in each jurisdiction you own assets in when making your will. This will help ensure that you are in the best position and that your wishes will be carried out.

What happens to my debts if I die?

It is a common misconception that your debts will be wiped out when you die. In reality, they become a liability on your estate. This means that the executor or administrator of the estate is responsible for ensuring that they are paid out of your estate before distributing any assets.

This does not typically mean that they will be personally responsible for paying the debts. Usually, the assets will be used to pay off the debts in priority order until no more funds are left. In this case, if debts are remaining, they are either written off or distributed pro-rata between the Creditors. Solicitors will normally advise executors to advertise trustee act notices if they are not the sole beneficiary of the estate, and there is a risk of unknown creditors.

If the estate is not worth anything upon your death, debts are usually written off. However, if any debts have a guarantor, this person will likely remain responsible for the payments.

If there are any joint debts (a debt that two or more people take out in all their names, such as a mortgage), the surviving parties normally become wholly responsible for them. However, there may be a life insurance policy to pay these debts off, as there often is in the case of a mortgage.

Conclusion

Having a legitimate, legally-binding will that ensures your wishes are carried out upon your death is important for any adult. However, it can be a stressful time. Choosing a solicitor who is an expert in this area to assist you can take a lot of the pressure off. Here at Setfords, our experienced and professional solicitors are here to help you with any matters relating to wills, trusts and probate. To find out more about how we can help you and your specific situation, please don’t hesitate to contact us using the form below.