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Get in-depth answers to some of the most common questions about Wills, trusts, probate requirements, and any associated matters.
1. Do I need a Will?
There are many reasons why you should have a Will, these are the main ones:
- It lets you decide what happens to your money, property and possessions after your death.
- It enables you to decide who will look after your children (under 18) if both their parents have died.
- To ensure your children and dependents are provided for financially.
- It can set out your funeral wishes so those you leave behind know what you wanted.
- To protect your unmarried partner and ensure they are able to remain in their home after you’ve died.
- To say who you would like to look after your pets.
- To help avoid family disputes about how your estate should be divided by making your wishes clear.
- To avoid paying more inheritance tax than you need to.
- To set out what you would like to happen to your digital assets after you’ve died.
- It provides you with the peace of mind knowing that you have put something in place to avoid making a very difficult time even harder for your loved ones.
2. What happens if I die without a Will?
Without a Will you have very little control over what should happen when you die – for example you do not choose who will deal with your affairs or who will be your children’s guardians – and your estate will be divided according to the intestacy rules.
Usually, the spouse or civil partner will inherit the bulk of the estate with the children inheriting the remainder. If there is no spouse / civil partner or children, the entire estate will go to your surviving relatives in the following order: parents, brothers and sisters (full siblings come before half siblings), grandparents, aunts and uncles and finally nieces and nephews. These may not be the people you wish to inherit your estate! If there are no living relatives the entire estate will go to the Crown.
3. Do I need a Will if I’m married / in a civil partnership?
If you don’t have a Will the Intestacy Rules will apply. If you are married / in a civil partnership and do not have children, your spouse / civil partner will inherit your entire estate. However, if you have children your spouse / civil partner will inherit all personal possessions and up to £270,000 of the estate. The remainder of the estate is divided equally between your spouse / civil partner and your children, with your spouse / civil partner getting half of the remainder and your children getting the other half.
Married partners or civil partners will only inherit under the Intestacy Rules only if they are actually married or in a civil partnership at the time of death, i.e., it is not enough that you are engaged and are intending to get married or enter into a civil partnership. Likewise, cohabiting partners (incorrectly called ‘common-law partners’) can’t inherit under the Intestacy Rules. Be careful as partners who have separated but aren’t yet divorced or haven’t legally ended their civil partnership, can still inherit under the Intestacy Rules.
Also, if you get married / enter into a civil partnership any existing Will you have in place will be revoked and it is necessary for you to prepare a new Will unless your existing Will has relevant provision in place preventing this from happening.
4. What does an Executor have to do?
An Executor deals with your affairs after you have died. Their responsibilities include:
- Locating and identifying the assets and liabilities of the estate.
- Dealing with the administration of the estate according to law by collecting in these assets.
- Determining the beneficiaries.
- Applying to the Court for a Grant of Probate, if necessary.
- Making sure all debts or liabilities are received, assessed and paid if substantiated.
- Arranging for the distribution of the estate according to the terms of the Will.
- Preparing accounts.
- Dealing with taxation returns, if required.
- Dealing with any claims against the estate (which may involve litigation).
5. Do Executors get paid?
Being an Executor can be a big responsibility and it can be very time consuming. Nevertheless, an Executor is not automatically entitled to get paid for their services and time spent dealing with the estate.
There might be a gift of a lump sum payment to the Executor in the Will in recognition of carrying out this responsibility. However, if there isn’t then the Executor cannot expect payment for the time they spend administering the estate.
An Executor might not be paid for their services, but they are entitled to claim back any expenses incurred from the estate so that they aren’t out of pocket. These expenses may include, paying for death certificates, probate registry fees, professional valuations, professional clearing and cleaning, property insurance etc and anything else considered reasonable costs during administration.
Sometimes professional Executors, i.e., professional legal or financial advisers appointed as Executors may charge for their services and there may be provision in the Will allowing them to do this. If you would like to appoint a professional Executor in your Will, make sure you check what their charges will be, if any.
6. Can I appoint a solicitor as my Executor?
You can certainly appoint a solicitor as your Executor and there’s many reasons for doing so:
- To prevent additional stress for those you leave behind.
- If the estate involves a trust and / or there are vulnerable beneficiaries, you may wish to appoint a professional Executor who will act as Trustee, particularly if the trusts are not simple.
- If dealing with the estate will involve complex affairs, i.e., cross-border matters (domicile or overseas assets), tax or businesses.
- If there is the potential for conflict between family members and / or beneficiaries. A professional Executor will be an impartial party, able to make decisions objectively.
- You have the reassurance knowing there should always be someone available to act as Executor unlike your friend or family member who may be unable or unwilling to act.
7. Who can witness me signing my Will?
When you sign your Will, you need to have two people present to act as witnesses, so that they can attest to the circumstances surrounding the execution of your Will if it is ever queried after you die.
Your witnesses must be over the age of 18 and they CANNOT be:
- Your spouse / civil partner.
- Family members.
- Beneficiaries named in your Will (or their spouse / civil partner).
- Blind or partially sighted.
- Mentally incapable of understanding what you are doing.
If any of the above are witnesses gifts in your Will may fail or the entire Will itself will be invalid, so it’s essential you get this right. Ideally you would choose independent witnesses to avoid any allegation that you were put under pressure to sign your Will.
8. Do I have to pay tax on gifts in my Will?
This is not a straightforward question to answer, but broadly this will depend on your Inheritance Tax (IHT) liability (please see our insight on Inheritance Tax and Tax Efficient Wills). Some gifts are automatically exempt from this tax, such as:
- any gift if your estate (all your money, property and possessions) is no more than £325,000;
- any gift to your spouse, a charity or a community amateur sport club;
- gifts you give in your lifetime are exempt from IHT, subject to some limits, as long as you continue to live for at least 7 years after making the gift. If you die sooner than this, IHT may be payable depending on the size of the gift(s).
9. How do I leave a gift to charity in my Will?
10. What happens if I want to leave a family member out of my Will?
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.
11. What makes a valid Will?
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.
12. When should I make a Will?
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.
13. Can I write my own Will?
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)
14. Who is entitled to see my Will after I die?
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.
15. What should I include in my Will?
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.
16. How much does a Will cost?
This will depend on how simple or complex a Will is necessary to cater for your individual circumstances. Using a solicitor will dramatically reduce any unnecessary risks inherent in trying to put together a DIY Will. We offer a no-obligation 30-minute consultation to set you on the right track with making a Will.
17. Do I need a Will if I own a house?
Being a major asset in anyone’s life, it’s strongly advised that you ensure your property (or share in a property) passes (as part of your estate) to the persons you decide in a Will.
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