Making a Will.

Why Make a Will?

A will allows you to decide what should happen to your money, property and possessions after your death. It can also identify who should administer your estate, who should care for your children and whether you wish to leave gifts to particular people or charities. Without a valid will, your estate will be distributed under the intestacy rules. Those rules may produce a very different result from the one you would have chosen. This guide explains the general law in England and Wales. Different rules apply in Scotland and Northern Ireland.

What Happens If You Die Without a Will?

A person who dies without leaving a valid will is said to have died intestate. The intestacy rules determine who inherits the estate and who has priority to administer it. Depending on the family circumstances, the estate may pass to:

• A spouse or civil partner;
• Children or their descendants;
• Parents;
• Brothers, sisters or their descendants;
• More distant relatives; or
• The Crown where no entitled relative can be found.

The rules do not consider whether you were close to a particular relative or whether another person needed the money more.

Unmarried Partners

An unmarried partner does not automatically inherit under the intestacy rules, regardless of how long the couple lived together or whether they described themselves as common-law spouses. Jointly owned assets may pass to the surviving owner depending on how they are held, and a surviving partner may sometimes bring a claim against the estate. However, that is not a substitute for making a will. A will is particularly important where you want an unmarried partner, friend, stepchild or other person outside the intestacy rules to inherit.

Children and Guardians

Parents of children under 18 should consider appointing one or more guardians in their wills. A guardian may acquire parental responsibility if there is no surviving parent with parental responsibility. The precise effect of the appointment will depend on the family circumstances at the time of death. You should discuss the proposed appointment with the guardian before including it in your will. Consider:

• Whether the person is willing and able to care for the children;
• Where the children would live;
• Whether siblings would remain together;
• How their upbringing and education would be funded; and
• Whether money should be held in trust until they reach a specified age.

A will cannot prevent the family court from intervening if a dispute arises, as the Welfare of the child remains the court's primary consideration.

Choosing Your Beneficiaries

A beneficiary is a person or organisation that receives something from your estate. You may wish to leave:

• Specific sums of money;
• Property or personal possessions;
• A share of the remainder of your estate;
• Money held in trust for children or vulnerable beneficiaries; or
• A gift to a charity.

Consider what should happen if a beneficiary dies before you. A properly drafted will can designate substitute beneficiaries and reduce the risk that part of the estate passes under the intestacy rules.

Choosing Executors

Executors are responsible for administering the estate. Their duties may include valuing assets, applying for probate, paying debts and taxes, selling property and distributing the estate. You can appoint between one and four executors, although one or two are commonly chosen. An executor should be:

• Trustworthy;
• Likely to survive you;
• Capable of dealing with financial and administrative work; and
• Willing to act.

You can appoint relatives, friends, a solicitor or another professional. Professional executors will normally charge the estate for their work. A person named as an executor is not necessarily forced to act. Depending on the circumstances, they may renounce the appointment or allow another executor to apply while reserving their own power.

Preparing for a Will Appointment

Before meeting a solicitor, prepare a general list of:

• Property and land;
• Bank and savings accounts;
• Shares and investments;
• Business or partnership interests;
• Life-insurance policies;
• Pensions and death-in-service benefits;
• Valuable personal possessions;
• Mortgages, loans and other debts;
• Potential beneficiaries; and
• Any gifts made in recent years.

You should also consider who will act as executor, who should care for any children and what should happen if your preferred beneficiaries die before you.

Pensions and Life Insurance

Pension death benefits and life-insurance proceeds do not always pass under a will. Some benefits are paid at the discretion of pension trustees or directly to a nominated beneficiary. Policies written in trust may also pass outside the estate. Check your nomination or expression-of-wish forms and keep them under review. A will and a pension nomination should form part of the same overall estate plan, even though they may operate separately.

Inheritance Tax and Estate Planning

Making a will can help ensure that available Inheritance Tax exemptions and allowances are used appropriately. However, a will does not automatically eliminate tax. Relevant considerations may include:

• The standard nil-rate band;
• The residence nil-rate band;
• Exemptions for gifts to a spouse or civil partner;
• Charitable gifts;
• Business Property Relief;
• Agricultural Property Relief;
• Lifetime gifts; and
• Trusts.

Tax planning can have unintended consequences, and allowances and reliefs can change. Specialist legal and tax advice should be obtained where the estate is substantial or includes a business, farm, trust or overseas assets.

Can You Write Your Own Will?

You can prepare your own will, but mistakes can make it invalid or cause disputes and additional expense after your death. Professional advice is particularly important where:

• You own property jointly with another person;
• You have children from an earlier relationship;
• You are unmarried but wish to provide for a partner;
• A family member may challenge the will;
• You wish to exclude someone who might expect to inherit;
• A beneficiary is disabled or vulnerable;
• You own a business, farm or overseas property;
• You wish to create a trust;
• Your estate may be liable for Inheritance Tax; or
• There are concerns about capacity or undue influence.

A solicitor can ensure that the wording reflects your intentions and that the will is signed correctly.

Requirements for a Valid Will

For a will to be valid in England and Wales, the person making it must generally:

• Be aged 18 or over;
• Make the will voluntarily;
• Have the necessary mental capacity;
• Understand and approve its contents;
• Put the will in writing;
• Sign it with the intention of giving effect to it; and
• Sign in the presence of two witnesses who are both present at the same time.

Each witness must then sign the will in the presence of the person making it. A will does not have to be dated to be valid, but it should normally be dated to help establish when it was made and whether it replaced an earlier will.

Who Can Witness a Will?

Witnesses should be independent adults with sufficient capacity to understand that they are witnessing the signature of a will. A beneficiary should not act as a witness. The spouse or civil partner of a beneficiary should not witness it either. The will itself may remain valid if they do, but the gift to that beneficiary will normally fail. This can produce a result very different from the one intended. The witnesses do not need to read the will or know what it contains.

Mental Capacity and Undue Influence

The person making the will must understand:

• That they are making a will and what it will do;
• The general nature and value of their estate;
• The people who might reasonably expect to benefit; and
• How the will distributes their estate.

Where capacity may later be questioned, a solicitor may recommend obtaining medical evidence and making a detailed record of the instructions and signing process. A will must also reflect the person's own wishes. Pressure, coercion, fraud or undue influence can result in a legal challenge.

Marriage, Divorce and Changes in Circumstances

Marriage or civil partnership will normally revoke an existing will unless it was made specifically in contemplation of that marriage or civil partnership. Divorce or dissolution does not usually revoke the entire will. Instead, a former spouse or civil partner is generally treated as having died before the person who made it for gifts and executor appointments. Review your will after:

• Marriage or civil partnership;
• Divorce, dissolution or separation;
• The birth or adoption of a child;
• The death of an executor or beneficiary;
• Buying or selling property;
• Starting or selling a business;
• A significant change in wealth;
• A move abroad; or
• A change in tax or succession law.

Even where there has been no major change, it is sensible to review the will periodically.

Changing an Existing Will

Do not amend a signed will by writing on it, crossing out words or attaching replacement pages. Informal alterations may be ineffective and can create uncertainty. A properly executed codicil may sometimes make minor changes. A new will is often clearer when several changes are required. The new document should expressly revoke any prior wills and be signed and witnessed with the same formalities as the original. Do not destroy an existing will until the replacement has been validly completed.

Storing Your Will

The original signed will must be stored safely, as it will normally be required when the executors apply for probate. It may be stored:

• With the solicitor who prepared it;
• Through a specialist will-storage service;
• With the Probate Service's will-storage facility; or
• In another secure location.

Avoid placing the original in a bank safety deposit box that cannot be accessed after death without probate, as the will itself may be needed to obtain the grant. Tell your executors or a trusted person where the original is held. They do not necessarily need a copy of its contents, but they must be able to locate it. Do not attach other documents to the original will with staples or paperclips, as marks or missing attachments may result in questions during the probate application.

Low-Cost and Charity Will Schemes

Some trade unions, employers, professional bodies and insurance policies include access to a basic will-writing service. Will Aid also runs a charity will-writing scheme through participating solicitors. Instead of charging their usual fee for a straightforward will, participating firms invite clients to make a voluntary donation to the Will Aid charities. Eligibility, availability and the work included should be checked directly with the solicitor. More complicated advice or additional documents may involve separate charges.

Finding a Wills Solicitor

When asking a solicitor for a quotation, check:

• Whether the price is fixed;
• Whether it includes advice on tax and trusts;
• Whether mirror wills for a couple are included;
• Whether storage of the original will is included;
• Whether future amendments will involve a charge; and
• Whether the firm offers home, hospital or care-home visits if required.

To find a solicitor who can prepare or review your will, use the search facility at the top of this page and select Wills and Probate. We recommend contacting several firms to compare their experience, service and fees.