Making a Will FAQs

1. I’m married and just want to leave everything to my spouse. We have no children. Surely I don’t need to make a Will to do that?

Since 1 October 2014, new intestacy laws came into force, changing what happens to your estate if you die without leaving a Will. If you die intestate (i.e. you die without making a Will), fixed legal rules apply to determine who is entitled to your ‘estate’ (i.e. what you leave).

Under the new rules, if you die intestate, your spouse (or civil partner if you are legally united in a civil partnership) will be entitled to everything.

These rules override any informal wishes you may have expressed. If, for instance, you want a portion of your estate to go to your siblings or if you wanted to leave a gift to the woman who comes to keep the garden under control, you need to put it in a Will.

There is also the question of inheritance tax.

Even though assets passed to your spouse are exempt from inheritance tax on your death, you should consider what will happen when they die.

Between the two of you, you can pass on assets worth £650,000 (twice the inheritance tax threshold, until April 2016) free of inheritance tax. If your spouse's estate is likely to be greater than this, you should consider taking tax planning advice with us – which will often include advice to make a Will

 

2. I’m married with children – what happens to my estate if I don’t make a Will?

If you have assets of less than £250,000, and die intestate (i.e. without making a Will), then your spouse or civil partner will be entitled to the whole of your estate (i.e. what you leave). The children get nothing.

If you die intestate with assets worth more than £250,000, and with children (including children from other relationships and adopted children, but not stepchildren unless you adopted them), your spouse (or civil partner) is entitled to:

  • your ‘personal effects’ (household goods, car, tools etc.)
  • the first £250,000 of your other assets
  • half of what's left

Your children are entitled to the other half, equally. If any of your children pre-decease you, then their share is divided equally between their children.

So if, for example, you were married with two children, and died intestate leaving £350,000 as follows:

  • your personal effects
  • a house worth £300,000
  • £50,000 in your bank accounts

your spouse would be entitled to your personal effects, and the first £250,000 of your assets.

However, the remaining £100,000 would have to be split. Your spouse (or civil partner) would be entitled to half of it, and your children would be entitled to £25,000 each (on reaching age 18). If, say, one of them had pre-deceased you, leaving two children, they would split their parent’s share, getting £12,500 each. If your children (or grandchildren) wanted their share immediately, and your spouse did not have the cash available, he (or she) could, potentially, be forced to sell the house

 

3. I’ve been with my partner for years, but we’re not married. Do I need to make a Will?

If you and your partner are not married or legally united in a civil partnership, your partner will not be automatically entitled to any of your assets when you die – no matter how long your relationship has been – unless you make a Will.

Instead, your estate will be divided among your children (or other more distant relatives if you have no children). Even if you have no relatives, your estate will pass to the Crown rather than to your partner.

Your partner might be able to claim some of your assets if they are in need or were financially dependent on you. But to ensure that your partner inherits, a Will is essential

 

4. Do I need a solicitor to make a Will?

If you own relatively little, and intend to make straightforward bequests, you may feel that you can make a Will without using a solicitor. Bear in mind, however, that there are pitfalls: for example if you get the formalities wrong. In these circumstances, getting a solicitor to draw up your will costs relatively little and will give you peace of mind.

In some circumstances you would be very unwise to draw up a Will without a solicitor. For instance, if:

  • Your heirs include a child or children, or a disabled adult. In such cases, you may need to set up a trust for them, and appoint guardians
  • Your heirs are elderly or ailing
  • Your estate is likely to be worth more than £325,000 and you have no spouse or civil partner to leave it to, so that all the excess is potentially subject to inheritance tax
  • You want to leave specific sums of money, or items of value – perhaps sentimental – to particular friends or relatives
  • You own property overseas – particularly land

 

5. So what are the formalities?

There are three requirements for a Will to be legal. 

  1. It must be in writing. Telling a friend, relative or even your solicitor what your intentions are is not enough
  2. You must sign it
  3. When you sign it, there must be at least two other people present to witness your signature

In addition you should date it, specify that previous Wills (if any) are ‘revoked’ (cancelled), and name your executor(s).

Make sure you give sufficient information on particular possessions intended for particular individuals, to ensure that they can be identified. ‘To my niece, the picture she likes in the living room’, for instance, would be a problem if there are six pictures and two nieces.

You should give details of the beneficiaries, including the address of each of them, if possible.

Generally, your Will should be clear on what will happen to a bequest if the beneficiary pre-deceases you. For example, whether it lapses, goes to their children (and in what proportions), or goes to someone else instead. When you leave a bequest to a class of people, such as ‘my grandchildren living at my death’, make it clear whether that includes unborn children, so pregnancies are covered. And you should say where you want the ‘residue’ (everything left over, once the specific bequests have been satisfied) to go.

Finally, it is desirable to leave details of your possessions (or at least, an indication of where such details can be found) with your Will

 

6. What kind of people can be witnesses? Are there any restrictions?

They must be over 18, of sound mind, and able to see; but apart from that there are no restrictions. However, witnesses – and their spouse or civil partner – are not allowed to benefit under a Will; so do not ask your next door neighbours to do it if you are leaving them something in your Will. 

If you are going to ask the window cleaner or a charity collector to witness your Will, be sure to get his (or her) address.  It is generally better to ask someone who can easily be traced.

They do not need to know what is in your Will – they are merely witnessing your signature

 

7. What is an executor?

Your executors are the people who make it all happen after your death. Among other things, they have to:

  • apply for a ‘Grant of Representation’ from the Probate Registry
  • notify the bank(s), pension agencies, solicitor, utility companies, and other relevant parties
  • arrange your funeral and pay for it (the money comes from your estate)
  • arrange for the payment of any debts outstanding on your death
  • identify the ‘beneficiaries’ (people who inherit under your Will) and establish where they can be contacted
  • close up the house (if necessary) and arrange for house clearance prior to a sale
  • arrange for the valuation of your estate, including any objects ('chattels') of significant value
  • liaise with the tax authorities on inheritance tax
  • pay the inheritance tax due (an account should be delivered within twelve months of the death)
  • arrange the distribution of bequests
  • keep account of all transactions, and get the accounts signed off by the beneficiaries

As you will appreciate, this can be a very demanding job. If you want one of your family or friends to do it, be sure to ask them first whether they are willing to take on the responsibility. If you don’t, and one of them then refuses to do it after your death (as they are entitled to do), this could mean more work for the other executor(s) or might even mean that the responsibility falls to one of your beneficiaries

 

8. It sounds like hard work. How many executors can I appoint?

You can name as many executors as you like in your Will, though the maximum number who can apply for probate to administer your estate is four. It makes sense to name at least two or three, in case any of them pre-decease you or later decide they do not want to (or cannot) act as an executor.

It's common to ask friends or family to be executors. It makes sense to choose individuals who are good at administration, have a bit of financial sense, and are trustworthy. You may also want to consider naming a professional executor such as a solicitor

 

9. I can’t think of anyone among my friends or family who could cope with being an executor. Can I appoint a professional executor?

It is common for banks and solicitors to act as executors. Alternatively, the individuals you have chosen as executors might decide to ask a solicitor to help with the administration of the estate.

Individuals, particularly if they have just lost a loved one, can find being an executor difficult and time consuming. A professional executor has the expertise needed, but of course will charge a fee for their services. Fees are typically around 5% of the value of the estate, with banks tending to charge higher fees than solicitors. Ask us for details of how fees will be calculated

 

10. If I use friends or family as executors, can they charge for their work?

No. However, they can take their expenses (for example, for travelling, phone calls, employment of agents to track down missing beneficiaries, or even handing over to professional executors) from the estate, though they would have to keep details.

Executors can benefit under the Will, and it is quite common for the principal beneficiaries to take on the job. In fact, appointing your principal beneficiaries as executors means they are already rewarded and they have a vested interest in getting things done fast and well – so they get their full entitlement sooner

 

11. Who looks after my estate if I don’t leave a Will naming my executors?

If your estate is very small (typically less than £5,000), your heirs may be able to claim their inheritance without formally applying for probate. Many banks and others will release relatively small sums without needing this, though they will usually want to see a sworn statement explaining the situation. They may also ask for an indemnity, making whoever claims the money liable if they were not in fact entitled to it.

If you left a Will but did not name the executors, or if none of your named executors is willing to act, then one of the beneficiaries under the Will can apply for probate as an administrator. If you did not leave a Will at all, members of your nearest family will inherit and can apply for probate. In both cases, there are rules setting out the pecking order for who can apply.

All this can add an extra layer of confusion, delay and potentially conflict. It makes much more sense to make sure that you do leave a Will, naming your executors

 

12. What happens if I make a Will but subsequently want to change it?

If you want to make a minor change, you can do it by adding a ‘codicil’ (a note attached to the original Will) or by a separate document. For instance, you might want to leave a fine mirror to a friend or helper: that would make a suitable subject for a codicil. Codicils have to be signed and witnessed like the original Will (though the witnesses can be different).

If you want to make more significant changes, however – perhaps because of the death of one of the original beneficiaries, or the birth of a new grandchild – you should draw up a new Will.

What you should avoid doing, under any circumstances, is writing on the original Will. That can create problems and might invalidate the Will completely

 

13. What happens if my circumstances change – for example, if I am widowed, and then get married again?

If you are widowed, your current Will remains valid but any gift that would have gone to your spouse lapses. This can dramatically change the effect of your Will: for example, if your Will left most of what you own to your spouse. Your best course is to draw up a new Will.

Any subsequent marriage (or entry into a civil partnership) will completely invalidate your current Will, unless that Will was drawn up in the expectation of the marriage and mentions it. Unless this is the case, you need to draw up another Will, preferably before the ceremony.

The same applies to any major changes in circumstances. If your Will might no longer reflect your wishes, you need to update it. Please ask us for advice

 

14. Will my current Will become invalid if I get divorced?

Your Will remains valid but any provision in favour of your former spouse ceases to apply once the divorce is finalised. You should draw up a new Will.

Bear in mind that your spouse remains a beneficiary until the ‘decree absolute’ has been granted – so you might want to draw up a new Will straight away if you are in the process of divorcing. Conversely, a former spouse may still be entitled to make a claim against your estate if they are in financial need or were financially dependent on you, even if you have excluded them from your Will

 

15. Can I specifically ensure that one or more of my children do not inherit? Could they challenge the Will after my death?

The answer to this question depends partly on the status of the children in question. If they can prove that they were dependent on you or are in financial need, and that you have not properly provided for them in your Will, they may be able to persuade a court to make provision for them from your estate.

If you intend to do anything that might appear to be unfair, you should provide reasons. For example, you might explain that you are excluding your older son because he had his share when he was setting up in business

 

16. Can I make provision for my pets in my Will?

Yes, but you cannot leave money to an animal. If you have made arrangements for your pet you should include this in your Will, otherwise the executors may decide on some other course in ignorance of your intentions.

If you wish to provide for your pets, and can spare the capital, you could set up a simple trust, with the income going to support them during their lifetime, and the capital going to another beneficiary – for instance, an animal charity – after their death. However, the trust’s income and capital gains would be subject to tax, and you might have difficulty finding anyone prepared to act as a trustee.

Alternatively you could leave your pet(s) with a cash sum to a named legatee (someone you can trust to give them a good home). Or you could leave them with a cash sum to an appropriate animal charity, such as the Cinnamon Trust or the RSPCA, which runs a re-homing programme. If you opt for this solution, be sure to put an appropriate clause in your Will – the RSPCA, for example, provides one on its website. If you have a healthy dog and want peace of mind he/she will never be put down once you've gone, then there's the Dogs Trust you can rely on

 

17. If I leave shares in my company to my spouse, can the other shareholders block it when I die?

That depends on the terms on which the shares were granted in the first place. These will be in the company’s articles of association. For public companies, a transfer of shares to your spouse (or any other beneficiary who is over 18) will invariably be allowed. Private companies’ articles will generally be more restrictive – and, if the shareholders have entered into a shareholders’ agreement, it may also regulate what you are allowed to do with your shares. Common terms are that:

  • the directors can refuse to register a transfer of your shares to anyone (including your spouse)
  • the shares must be offered to the other shareholders before they can be transferred to your beneficiary
  • the shares can be transferred under your will, but only if the transfer is to a member of your family (which would include your spouse), or to family trusts

If shares cannot be transferred to your spouse, or other beneficiary, because of these restrictions, they usually become entitled to the cash equivalent instead, unless your Will says the gift lapses in those circumstances

 

18. Can I make provision for my civil partner?

Providing that you have gone through a legally binding ceremony, your civil partner will have exactly the same rights as a spouse would. 

Registration of the civil partnership (like marriage) invalidates any existing Will, unless the Will was drawn up in expectation of this registration. If you have not registered the civil partnership, and have not made a Will, your partner will not be automatically entitled to anything. So if you are planning to register a civil partnership, have registered a civil partnership without considering the impact on your Will, or have not made a Will anyway, ask us for advice

 

19. I have property abroad. Is there going to be any problem in disposing of that in my Will as I see fit?

The law in England and Wales says that the law governing foreign property (land, buildings etc) is the law of the country in which the property is situated. Whether you can dispose of that property in your UK Will, or you need to make a local Will, depends on the law of the country in which your property is situated. Often you will need to make two Wills – one in the UK and one abroad – and the two must be consistent.  However, from 17 August 2015 this has since changed.

A particular danger to look out for is the ‘forced heirship’ rules that apply in some countries. These say that a proportion of your property must pass by law to certain of your heirs (often only those in your bloodline – not your spouse’s family), whatever your wishes, and whatever it says in your Will.

Another is inheritance tax. Land and buildings, in particular, are likely to be liable to local inheritance tax in the country where they are situated. Foreign inheritance tax can be punitively high, particularly if your beneficiaries are not family members.

You will also have to obtain a valuation of the property for the purposes of probate.

This is a very complex area of law

 

20. If I leave something to someone who dies before me, what happens?

Generally it becomes part of your residue (i.e. what is left over, after any specific bequests have been satisfied) and so will pass to whoever your Will says is entitled to the residue, unless you make specific provision to the contrary

 

21. I want to leave something to a friend, but I would prefer my spouse not to know about it. Is that possible?

Not if you want to leave it to him (or her) in a Will, which becomes a public document. You will have to make other provision during your lifetime: for example, you might arrange for your friend to benefit under a life assurance policy (though he or she would still need a copy of your death certificate to be able to claim the money)

 

22. What taxes are chargeable on my estate after I die, and who sorts them out?

Your executor(s) or administrator(s) will be responsible for the payment of any tax due on your death. This can include any outstanding income tax (on your earnings before death), capital gains tax and inheritance tax.

If your estate is worth less than £325,000 (2015-16 tax year), there is no inheritance tax. If your estate is worth more than this, however, inheritance tax at 40% may be payable. (This is reduced to 36% if more than 10% of the estate is left to charity.) Your executors will not normally be able to obtain probate and start distributing your bequests until HM Revenue & Customs have received some or all of the required inheritance tax.

In establishing the value of the estate, HM Revenue and Customs will require the inclusion of:

  • personal effects of any value, for example your car(s), paintings, jewellery, antique rugs or furniture
  • your house
  • any other property
  • any investments
  • the contents of your bank and savings accounts
  • the proceeds of any life assurance policies (other than policies 'written in trust' for other people)
  • gifts – apart from those made under the annual allowances (see below) – made within the past seven years
  • in some cases, trust property from which you benefit
  • foreign property

If you own assets jointly on your death, such as your house or a joint bank account, there are rules that determine which proportion of those assets is treated as part of your estate for the purposes of calculating its value for inheritance tax purposes. Usually, if you are one of two joint owners, you are treated as owning half, if one of three, a third, etc.

However, the following are excluded from the value of your estate:

  • your debts, if any (including, for instance, closing bills from the utility companies)
  • the costs of your funeral
  • any gifts to your spouse (or civil partner)
  • any gifts to a registered charity
  • any gifts ‘for national purposes’
  • gifts in consideration of marriage: up to £5,000 to a child, £2,500 to a grandchild, or £1,000 to anyone else
  • gifts of up to £3,000 to any one person in any one year
  • gifts of up to £250 in any one year to any number of people
  • regular gifts or payments out of income (i.e. gifts that were made without needing to dip into your capital)
  • gifts made more than seven years before your death

 

23. What if the tax laws change before I die, and my Will creates unintended tax liabilities? Or if my Will is generally unsatisfactory to my beneficiaries? Can they vary it after my death?

Providing all your beneficiaries agree, and they act within two years of your death, yes they can – though it can be particularly complicated if any beneficiaries are under the age of 18.

It is safer, if possible, for you to review your will on a regular basis, and certainly whenever relevant tax or probate rules change

 

24. How much will it cost me to make a Will?

The cost of making a Will with us is generally quite moderate, although it does depend on how complicated the provisions are. Ask for an estimate of the cost before you start

 

25. Where should I keep my Will?

You should keep the original somewhere safe and off your premises – for example, with your bank or with us. You can also file your Will at the Probate Registry – although if you alter it, or make a new Will, and don’t tell them, it can create problems for your executors when they apply for probate or letters of administration on the basis of a different Will. Your executors will need the original when they apply for probate, not a copy.

If you instruct us to draw up your Will in the first place, we can keep the original and give you a certified copy

 

26. What is Probate?

Probate is the process through which the executor(s) or administrators of your estate get permission to deal with it. Being named in the Will, or being the nearest next of kin and therefore entitled to be administrator, is only the first step: before they can actually do anything with your assets and liabilities, they need a ‘Grant of Probate’ (if you have left a Will) or ‘Letters of Administration’ (if you haven’t) from the Probate Registry. Before they can get that, however, they need at least a good estimate of the values of your assets and liabilities, so the better your affairs are organised, the faster probate will be granted.  

The Probate Registry will examine the application from your executors (or administrators), and may ask questions. After this, the Probate Registry will prepare an oath for your executors to sign confirming the validity of the information given, and their commitment to deal with your estate in a right and proper manner, in a standard form sworn statement. This can be sworn at the Probate Registry or at the office of any commissioner of oaths – usually a local solicitor.

The ‘Grant of Probate’ or ‘Letters of Administration’ can then be shown to anyone being asked to release your money or other assets

 

27. Is there anything more I can do to make things as easy as possible for my executors after I’m gone?

Yes, plenty.

  • Prepare a schedule of your current assets, date it, and give approximate values. This doesn’t have to be all your assets – just those with some monetary value. Provide details of any subsequent purchases or disposals
  • Prepare a schedule of your current debts, and date that too. Provide details if you subsequently add to or reduce any non-recurring debts (for example, if you pay off your mortgage)
  • Provide details (name, address and telephone number) of your bank(s), stockbroker(s) if any, accountant(s) if any, and solicitors. Make a note of your bank account numbers too, but for security keep it separate – give it to your executor, or at least tell them where it is
  • Provide a list of your utility providers (gas, electricity, water, telephone and cable or satellite), with addresses, phone numbers and account numbers
  • Decide what kind of a funeral you want, and if possible who is to be employed to provide it. Provide instructions for your executors and your next of kin
  • Provide precise details of the chattels you are leaving to individual beneficiaries, in sufficient detail to ensure that there can be no doubt about what it is you intend to leave to whom
  • Provide a list of your favourite charities/charity shops, so that your executors can dispose of some of your remaining chattels there, before the house clearance people come in
  • Provide a list of your beneficiaries, with their current addresses and telephone numbers. Stay in touch with them, so that you can amend their details if necessary

Keep all this information together, and tell your executors where it and your Will are kept.

Insofar as it is possible to do so, clear out your unwanted possessions (keeping anything promised in your Will). In particular, go through your papers and throw out or at least store logically any that are now out of date – otherwise your executors could be tied up for weeks or even months going through them

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