• What is a Will?

    A Will is a legal document (for those over 18 years of age) that sets out your wishes in the event of your death. It only comes into effect on death, so you can change it as many times as you like during your lifetime (provided you still have the mental capacity to understand what you are doing). It normally includes instructions regarding:

    • the control of the administration of the distribution of your property, money and possessions (your ‘estate’) when you die – your personal representative(s);
    • the details of your wishes for the distribution of your estate;
    • other wishes, such as a preference for burial or cremation or organ donation.
  • Do I need to make a Will?

    It’s easy to come up with various reasons to put off making a Will, when in fact, it really should be a priority. In general, most people have a vague intent to get this done, at some point. However, the ideal time for this never quite seems to present itself, which is why recent studies have revealed that about two-thirds of UK adults have not yet made a Will and about one-third of UK adults die without ever making one.

    Everyone who is over 18 should have a valid Will in place for several reasons:

    • It is easier for loved ones to sort everything out following a death when it is already a time of grief, loss and stress. Having a Will in place means the administration can begin straight away without further delays and costs.
    • If you die without a valid Will, it is the law that decides (in a strict, standard manner) who gets what after your death, rather than who you would have ideally chosen yourself to benefit. Modern family arrangements are not taken into account in these rules and neither are personal family relationships or estrangements.
    • In your Will, you can provide for those who rely upon you financially, by planning exactly what will happen to your estate when you die. You can set up trusts specifically designed to care for those with special needs into the future and you can appoint a guardian for children under 18 and plan their future inheritance with people you choose and trust.
    • If you wish to leave something to someone who is neither a close family member, a spouse or a civil partner (such as a partner or a friend) then making a Will is the only way to ensure that your wishes regarding this are met. You may also wish to donate something to a charity or charities of your choice following your death and you can express this wish in your Will.
    • Inheritance Tax might be payable on the value of your estate on death and making a Will can help to reduce the amount that is payable by wise financial planning.
  • What happens if you die without making a Will?

    Your property and possessions will be distributed according to the law instead of your particular wishes, if you die without a valid Will. This can result in consequences that you may not have foreseen during your lifetime, such as your estate passing to relatives that you no longer have contact with or someone who is very important in your life ending up with nothing from your estate.

    The law of ‘intestacy’ as it is known, which comes into effect on the death of a person without a valid Will, is a set of rules that are inflexible, made in 1925 (with a few amendments made since, but still not taking into account modern family lifestyles) and applied in a standard manner using a set order of family members*. It is this law, which determines who gets what and how much, if you die without a Will. It really doesn’t matter what your personal relationship with any of those relatives may have been like during your lifetime; this is simply not considered. Therefore, it is advisable to know where your estate would go if you were to die without a Will, so that you can take steps to make a Will and change this, if it doesn’t meet your expectations**. The common points to note about this are:

    • If you are not married and not in a civil partnership, but you live with someone as partners and you want them to inherit something from your estate when you die, then need to make a Will to express this wish.
    • If you are married or you are in a civil partnership, your spouse/civil partner may inherit most or all your estate and your children may get nothing or less than you would wish them to get. This is also the case if you are separated but not divorced.
    • If you have children or grandchildren, the amount they are legally entitled to depends on where you live in the UK (Scotland and NI have a different legal system to England and Wales).
    • Any Inheritance Tax that your estate must pay may be higher than it would be if you had made a Will.
    • If you have no spouse, civil partner or living relatives at all, your estate will pass entirely to the Crown (‘bona vacantia’) so having a Will in place ensures that it could pass elsewhere, perhaps to a close friend or to charity.
    • Children and grandchildren can only inherit under the rules of intestacy if they are biological children of the deceased or were legally adopted by the deceased. Those who were treated as children of the deceased, such as in a blended family without formal adoption, will not be eligible.

    *see – The Society of Will Writers flowchart on intestacy  
    **see www.gov.uk/inherits-someone-dies-without-will

  • How do I go about choosing my executor?

    In your Will, you can name someone in whom you trust to deal with the administration of your estate when you die. You can choose either a sole executor to act, or you can name up to four executors (for a Grant of Probate) in total but they need to act jointly and so the more you have, the more difficult it gets to administer the estate. If you have a sole executor, it is wise to name a substitute in case the chosen person dies before you.

    By having a Will in place, the administration can begin immediately, whereas if there is no Will, a court must appoint an administrator to act and this can cause delays and add to the costs. You should always ask a person if they would be willing to undertake the role because they are not under a duty to do so and they may renounce the role perhaps if it is not expected and they haven’t agreed to it beforehand.

    Executors can be professionals, especially if the estate is likely to be complicated to administer. Solicitors, accountants and other professionals will charge for these services and a charging clause is added to the Will on this understanding. It is important to understand how these charges will be administered before committing to adding the clause into a Will because professional executors can charge an estate for this work in different ways – it can be based on time spent on the matter overall by the professional or it can be based on a percentage of the total size of the estate.

    If there is nobody to act as an executor on your behalf, you can nominate (as a last resort) a government official known as the Public Trustee to be your executor. See www.gov.uk/public-trustee-executor-will for more details.

  • How can my divorce affect my Will?

    Divorce does not make your will invalid but it automatically revokes any gifts made to a former spouse (when the decree absolute is granted). If your former spouse was named as an executor in your Will then it would be as if the spouse had died on the day the decree absolute was granted and so the appointment would fail. It is advisable to check your Will following a divorce, in any event, as you may need a new Will to cover your new circumstances. Separation does not affect your Will – even if you have a formal Separation Agreement, so you may wish to get a new Will.