Wills Solicitors

The person writing the Will (Testator) has the freedom to distribute their estate however they wish, but the law allows certain categories of people to apply to the Court and make a claim against a deceased person’s estate. They will need to show that the deceased did not make reasonable financial provision for them. This is limited to: 

• the spouse or ex-spouse of the deceased;
• a person who, for the two years prior to the death, was living with the deceased as if a spouse;
• a child of the deceased; a person who was treated as a child by the deceased;
• any other person who was being maintained by the deceased prior to their death.

If you are considering excluding a close family member such as a spouse or child from your Will, we strongly recommend you consider making some provision to them in your Will, however small a gift, as well as writing a Letter of Wishes to accompany your Will, making it very clear why you’re effectively disinheriting them.

A Will must be ‘executed’ properly to be valid. In short, this means if you’re writing your Will you must:

• be 18 years old or over (unless you’re a solider on active duty or a sailor at sea, in which case you can be any age);
• have mental capacity – you must understand that you’re signing your Will and the consequences of doing so, along with knowing what property & assets you own and the effects of excluding key persons (such as family members);
• make it voluntarily (no-one must force you to write the Will);
• make the Will in writing; and
• sign it in the presence of 2 independent witnesses over 18 who then both need to sign in your presence.

Generally speaking, anyone over 18 with money and/or property to their name should consider writing a Will. It can safeguard the care of children, if applicable, and make financial provision for family on death. There are certain circumstances when a Will should be considered as an urgent measure: 

• you are not married but want a partner/cohabitee to inherit from your estate;
• you get married, as your old Will would be invalidated by the marriage;
• you have a child under 18 for whom you’ll need an appointed Guardian to care for them if you die while they are under 18 (and there is no natural parent/person with parental responsibility alive at your death);
• you buy a property or come into substantial sums of money;
• you get divorced, as any previous Will won’t automatically be invalidated. Instead it will operate on the basis that your ex-spouse/civil partner has ‘died’;
• when you want to make provisions for stepchildren, foster children or dependants;
• if your spouse passes away, and your previous Will left the estate to them.

The short answer is yes, but it is strongly recommended that you avoid setting up a ‘DIY’ Will. While there’s no need for a Will to be drawn up or witnessed by a solicitor, the consequences of making an invalid Will – sometimes because of simple mistakes – can be catastrophic and costly to remedy (please see ‘What makes a valid Will’ above)

This will depend on whether or not probate has been granted. Before the grant of probate is issued, only the executors named in the will are entitled to see the Will. After the grant of probate has been issued, the Will becomes a public document, and anyone can then apply to the Probate Registry for a copy of it.

Conversely, if a grant of probate hasn’t been applied for and the Will has not been provided to the Probate Registry, it will not become a public document.

There are 5 principal steps which set out what should be included in a Will

1. Name Your Executor

First thing to consider is who you want to act as your Executor. This is the person who will be responsible for settling your affairs and distributing your estate in line with the terms of your Will.

You can pick anyone you wish as your Executor, but this should be someone who is likely to survive you and also will act in the best interests of your beneficiaries.

This can either be someone close to you, such as a friend or relative, or a professional such as a Solicitor or Accountant. The responsibility of an Executor involves a number of duties, so it’s also important to choose someone who you feel is capable of carrying out this onerous role.

2. Funeral Wishes

You can include funeral wishes in your Will, such as whether you would like to be buried or cremated, as well as where you would like to be buried or have your ashes scattered. You could also e.g., include things such as what music you would like to be played at your funeral.

If you are including funeral wishes in your Will, it’s well worth making your family and/or Executors aware of them –the wishes are not legally binding on your appointed Executors, but your Will provides a suitable place to record them.

3. Name Legal Guardians for Your Children (if applicable)

If you have children under the age of 18, then you can make provisions for their care in your Will. You should name who you’d like to step in as their legal Guardian (to take parental responsibility) in the event of both parents dying. It’s sensible to speak with the person/s you’re considering for the role of Guardian, as agreeing to take on legal guardianship of another’s children is a huge undertaking – you need to make sure that the proposed Guardians are willing and able to take this on if the need ever arises.

4. Your Money / Assets

For many, one of the primary purposes of making a Will is to be clear about who should receive their money and assets after they die. However, in order to do this, you’ll need to consider not just what you own now but also what assets you may own at the time of your death.

Your ‘estate’ is the collective term for everything you own. This will include any property that you own in your sole name, as well as your car, your savings and your personal possessions. It also includes things such as life insurance policies, pension schemes, stocks, shares and premium bonds.

If you own a property/assets/money jointly with another person as joint tenants, then your share would automatically pass to them on your death by virtue of the ‘rules of survivorship’, so you cannot include this in your Will.

If you own a property jointly with someone else as tenants in common, then your share of the property can be included in your Will.

5. Naming Your Beneficiaries

You also need to decide whom you want to benefit from your estate on your death.

Generally speaking, you can name anyone you want as a beneficiary, with no limit to how many beneficiaries you choose. Your beneficiaries can be e.g., your friends, family members, acquaintances, organisations or charities.

The person/s that you’ve named as your Executor can also be named as a beneficiary.

Bear in mind that who you leave gifts to in your Will can directly impact on how much Inheritance Tax your Estate is liable to pay.