Although making a will is one of life’s important decisions it is surprising how few people actually get round to it. If you die intestate (without a will) your property and valuables may not go to the people whom you most want to inherit them, it will be difficult to administer your estate, and you could end up paying large amounts of tax that would otherwise go to your loved ones.
A basic will must contain the following 6 provisions:
The will should state the full name and address of the person making the will (the Testator) and specify the nature of the document, for example, it is a legal requirement to state that it is the ‘last will’ or ‘last will and testament’. Also, if the testator owns property under a different name it will be important to state this.
If the testator owns property outside of the United Kingdom this should be identified and a statement added as to which law should apply. However, in some countries such as France, national law will override a will made in the United Kingdom bequeathing property in France to a specific beneficiary so it is always wise to take advice from professionals in the relevant country.
If the testator is due to marry, the testator should specify that the marriage (or civil partnership) should not revoke the will otherwise the marriage (or civil partnership) will automatically revoke the will.
The date can appear either at the beginning or at the end but it should not be inserted until the will is complete.
This makes clear that any previous wills and additions are expressly revoked otherwise there might be a problem if the new will is inconsistent with an earlier version. It will also be important to clarify whether any wills have been made dealing with assets outside the United Kingdom and whether these are also to be revoked at the same time, or which will take priority.
The names of the people chosen to administer the estate (the executors) must be identified otherwise the law will govern who may act as administrator.
If property of the state is to be held in trust it is useful to identify the people who will look after those assets (the trustees). Often they may be the same people but this is not always the case. For example, when the executors have administered the estate by collecting any money owed, paying outstanding debts and distributed the estate to the beneficiaries then any property to be transferred to them to hold on trust will be done in their capacity as trustee.
The minimum number of executors to be appointed is one but there is no maximum number of executors that can be appointed. However, as only four can apply for a grant of probate there is little point in naming any more. It is possible to appoint up to four executors for each part of the estate for example, a testator with a rare book collection might want to appoint experts in the field as executors of the books and four family members for all other assets. A simple estate might appoint one executor who will also be the beneficiary. However, to avoid the risk of the executor predeceasing the testator it is prudent to name at least two. The effect of a divorce is the same as the death of the spouse if they had been names as executor so that the appointment of a spouse as executor will not take effect.
The individuals who may be appointed as executor are (i) individuals who are not professionals such as family and friends; and/or (ii) solicitors or other professionals either as individuals or as a firm; and/or (iii) banks or trust corporations.
Choosing a trustworthy family member or friend as an executor has a number of advantages including the fact that they will often have knowledge of the estate and will not want to charge for it. However, if the estate is not straightforward then the executors may not have the expertise to administer the estate. In this case, a solicitor would be employed and the estate would be charged. A minor cannot be appointed as an executor nor can someone who has previously been barred from taking out a grant of probate. The testator should take care to ensure that the executor has not been convicted of an offence of dishonesty.
There are a number of different types of gift that a testator can make. Firstly, there are non-residuary gifts, which are generally specific gifts of money or property:
It is important to ensure any beneficiary is properly identified otherwise the gift might fail due to uncertainty. For example, if the gift was to ‘my niece’ and the testator has more than one niece, the gift will fail. Equally, a gift to ‘my daughter’s husband’ would go the whomever the daughter is married to at the time of the testator’s death, which might not be the intended beneficiary if the daughter divorced and remarried. The full name, address and relationship to the testator should be specified.
All wills should contain a suitable signature clause, which should also include provision for the two witnesses to add their details.
More complicated wills will require additional clauses. It is possible to draft wills to include a huge array of wishes or circumstances, and professional advice should be sought for anything not covered here.
Trusts in wills can also be a powerful way of making sure your wishes are met while giving your executors some flexibility after your death. They can also be very tax efficient.
No will or invalid will
If a person dies without making a will or if a will is not legally valid, their goods, property and possessions (their estate) will be divided according to specific legal rules, the Intestacy Rules, irrespective of who the deceased would have wanted to inherit their estate. This is one reason why making a will is so important.
The Intestacy Rules confirm that where a person dies intestate, their estate will be distributed as follows:-
No surviving issue (the term ‘issue’ means lineal descendants such as children and grandchildren. It does not include stepchildren but does include adopted children):
The surviving spouse/civil partner will take the estate absolutely.
There are two ways of jointly owning your house, these are:-
When property is owned as joint tenants, the surviving owner will automatically inherit, under the survivorship rules, the other person’s share in the property.
When a property is held as tenants in common, each person will hold their own individual shares in the property and these will pass in accordance with their Will or the Intestacy rules.
The survivor of a joint bank or building society account or any other type of joint investment, will automatically inherit, under the survivorship rules, the whole of the money if one person dies.
With the exception of property held as tenants common, any jointly owned assets will pass under the rules of survivorship and their values will not be considered when determining entitlement under the intestacy rules. The values must still be declared to HMRC.
Spouse/Civil Partner and Issue
No surviving spouse/civil partner but there is issue
The estate will be divided equally between the deceased’s children but if any children have predeceased, their issue will be entitled to the share that their parent would have taken had they survived.
If there is no spouse/civil partner and no issue the estate will pass in the following order:
Important Points to Note:
A divorced person will not automatically inherit under the rules.
A spouse/civil partner who is separated but not divorced can still inherit under the rules.
Cohabiting partners (sometimes known ‘common-law’ spouses) who were neither married nor in a civil partnership cannot inherit under the rules.
Any property held jointly will not pass under the intestacy rules and will instead pass under the rules of survivorship
A child whose parents are not married or have not registered a civil partnership can inherit from a parent who dies intestate under the rules. These children can also inherit from grandparents or great-grandparents if they have died intestate.
Adopted children including step-children who have been adopted by their step-parent have rights to inherit but otherwise you have to be a biological child to inherit.
Children will gain a vested interest in their inheritance when they reach 18 or marry or form a civil partnership under the age of 18.
There is no right for the following people to inherit under the rules of intestacy:
However, those who cannot inherit under the rules of intestacy may be able to apply to court for financial provision from the estate.
If you are not a surviving relative and believe you may be entitled to a grant you should obtain legal advice.
Sharing property without a will
It is possible to rearrange the way property is shared out under the intestacy rules. This can be done by making a deed of family arrangement or deed of variation within two years from the date of death. In order to make provisions using these instruments, anyone that stood to inherit under the intestacy rules, must agree to its terms.
You may be able to apply to the court of the person who has died intestate for reasonable financial assistance in various circumstances. For example, if you lived with the person who has died for at least two years before their death but were not married to them, you would not inherit under the rules. However, you could apply to court for reasonable financial assistance. Another example would be if you were always treated by the person who died as a child of the family.
An application for financial assistance must be made within a certain time limit although in some limited circumstances this can be extended.
The court may order regular payments from the estate, a lump sum payment from the estate, or property to be transferred from the estate.
A Will enables you to:
If you die without a Will, your property will be distributed by a court-appointed administrator according to statutory rules for “intestate succession.” Your property will be divided among your surviving spouse, children, and possibly other relatives in whatever manner the law of your jurisdiction specifies. You will not have a chance to give property to non-relatives or to exclude relatives. Additionally, if you have no relatives, your property will go to the state rather than to a friend or charity of your choice.
In most jurisdictions you must be at least 18 years old to make a Will, however exceptions may be made for younger people if they are in the military, if they are married or if they have been legally emancipated. In addition you must be of “sound mind” to make a Will. Being of sound mind means:
It is up to you to decide when to change your Will. You should review your Will from time to time to ensure that it still meets your needs and that your property will be distributed according to your wishes. It is especially important to review your Will on the following events:
A codicil is an amendment to your Will. A codicil is used when you are happy with the contents of your Will but want to make minor changes. It leaves your original Will intact but makes specific changes, such as adding or deleting a beneficiary. A codicil is signed and witnessed (executed) in the same manner as a Will.
Yes: a power of attorney for financial matters provides your chosen agent with the power and authority to deal with your property and make financial decisions for you only while you are alive. A power of attorney automatically ends on your death. Consequently, you need a Will to specify how you want your estate distributed on your death.
An executor or personal representative is responsible for collecting the assets of the testator’s estate, paying any debts of the estate, paying any applicable taxes, and distributing the assets of the estate in accordance with the directions of the Will.
Administering the estate can be complex, time-consuming and stressful. Ensure you select someone you trust, who will be able to handle your financial matters prudently. Your executor does not need to have any legal expertise. An executor can always hire a solicitor should the need arise. Many people select their spouse or an adult child to be their executor. Also, people often choose an individual who will be receiving a substantial amount of property to be their executor. In this way, the executor will want to ensure that the property is distributed properly.
Typically you may choose anyone to act as executor except a minor. An Executor can be disqualified if they have been convicted of a crime. Additionally, some jurisdictions place restrictions on non-resident executors (for example, some states specify that all non-resident executors must be related to you).
Yes, your executor can be a beneficiary in your Will.
Mirror wills are used to allow two people to create almost identical wills which leave everything to each other. A husband and wife (or any other couple) can make “Mirror” Wills by each writing a Will that leaves everything to the remaining spouse. Often, there is a clause that provides that if the husband and wife die at the same time or within thirty days of each other, then everything goes to the couples’ children or if there are no children, to a named beneficiary.
The important thing to remember is that you can only use a Will to give away what you own, and not what your spouse owns. Additionally, jointly owned property where there is a right of survivorship cannot be disposed of in your Will because the surviving owner automatically becomes the sole owner of the property when one of the joint owners dies. This is true whether it is a house, a bank account or any other property that is jointly owned.
If you want to make Mirror Wills, each partner must create a Will. Use the “Specific Gifts” section to give gifts to named beneficiaries and then the “Distribution of Residue” section to give everything else you own to your partner. If you do not want to give specific gifts to anyone, select “None” for Specific Gifts and leave the residue of your estate to the other partner.
A guardian is a person the testator appoints to look after the testator’s minor children when the testator dies.
You do not have to appoint a guardian for your minor children however, if you do not, the courts will decide who will look after your children if no other person having parental rights survives you.
When appointing a guardian you may want to consider the following questions:
You can include your wishes for your funeral in your Will. However, your expressed wishes are not binding, and there is a good possibility no one will look at your Will until after your funeral. If you do put directions for your funeral in your Will, make sure your executor and family members who will be arranging your funeral know that you have done so. You can use the Additional Clauses section to specify your funeral instructions.
The Additional Clauses section allows you to add up to four clauses to your Will. You can use this section to add specific gifts, to give conditional gifts or to express your non-binding wishes about some matter.
To properly execute your Will, you will have to be present with your chosen witnesses. You will have to identify to them that this document is your Last Will and Testament. You will then initial each page of the document at the bottom of the page, below all the text, except the signing page of your Will, which requires your full signature. To be valid, you must sign the final (signing) page with your usual check-signing signature. No text should appear on the last page after your signature – other than the witness signing area. Signing and initialing of the pages must occur in the presence of your witnesses.
In most states, if one of your witnesses is also a beneficiary, then your Will is still valid, but any gift to a witness may be reduced in value to that permitted by law. In general, where a witness is also a beneficiary, this can create a presumption that the gift was given under duress.
To ensure that your Will is followed exactly, your witnesses should not be any person to whom you leave property, nor the spouse of any person to whom you have left property.
Yes, but only if the executor is not a beneficiary in your Will.
The best approach is to use a self-proving Last Will.
You do not have to file your Will with any court system or government body. However, you should store your Will in a safe place where your executor or personal representative will be able to locate it.
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 a will:-
If you wish to deposit a will in this way you should visit the District Registry or Probate Sub-Registry or write to:
The Probate Department
The Principal Registry of the Family Division
First Avenue House
42-49 High Holborn
London WC1V 6NP
Tel: 020 7947 6000