Wills

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Wills

What is a will and who can make one?

A will sets out how you (the testator) want to see your property (or estate) divided on your death.

A will must be in writing and must comply with specific rules, except for certain special cases. These rules are designed to reduce the risk of fraud and undue influence.

A will only comes into operation on your death. Until then a will can be altered or cancelled at any time. You can and should revise your will as your life and circumstances change.

If you are aged 18 years and over, and of sound mind, memory and understanding, you can make a will.

What does a will do?

A will does four main things:

You appoint persons to act as executors. So you choose in advance the people you want to administer your estate after your death. From the moment of death, the executors have power to deal with your property. A careful choice of executors can improve the speed, efficiency and care with which the estate is administered. The executors must find out what property you owned and what your liabilities were, collect in all assets, pay all liabilities and ensure that there are no loose ends.
A will tells the executors to whom they are to distribute the estate when they have collected in all the assets and paid all the liabilities.
A will ensures that the executors have all the powers they need to deal with the estate properly and to look after any money left to a young child until he or she reaches the age specified in the will.
A will can also be used to appoint guardians to look after your young children.

What happens if I do not make a will?

If you die without having made a valid will, the intestacy provisions will apply.

These are very complex, but broadly speaking the law will assume that you would have wished to look after your surviving spouse (or registered civil partner) as a first priority. But he or she may not necessarily receive the whole of your estate, as some may pass to your other relatives.

If you do not leave a surviving spouse, registered civil partner, or children, then blood relatives in a descending order of priority will be likely to be the prime beneficiaries. The law also sets out a list of people entitled to administer your estate.

Ultimately, if you die without making a will, and possible beneficiaries under the intestacy provisions cannot be traced, then your estate will go to the Crown.

Points and Problems

Taxation

The law keeps changing in this field but experience shows that all governments impose a tax on the value of a deceased’s estate. Nowadays it is called inheritance tax and it is possible to achieve major tax savings by making a carefully drawn will or by making lifetime gifts. For more information please see our section on Estate and Tax Planning

Involuntary Changes in your Wishes

Generally speaking you are free to deal with your estate as you wish. However there are some cases where others have the right to intervene and to change your arrangements:

A will may be held to be invalid because of fraud, forgery, or undue influence. These are rare cases.
Certain classes of people including spouses, registered civil partners, former spouses children, cohabitees and those who you were maintaining may have a right to go to court and say that the way in which the your estate has been left is unfair and should be changed.
A will can be revoked at any time. There are also some circumstances where a Will is automatically revoked or altered. For more information please see our section on Challenging a Will

Marriage or the registration of a civil partnership automatically revokes a previous will unless it was made in contemplation of that marriage or registration. This can lead to unfortunate results if you do not make a new will on marriage or on registration of a civil partnership.

Divorce or dissolution of a civil partnership does not revoke a will in the same way as marriage or registration does but it does make invalid any gift in a will to a former spouse or registered partner and this can cause problems. A review of your will should always be carried out in the event of a divorce, separation or dissolution.

Points to Consider

Who do you wish to appoint as your executors? Would it be helpful to appoint an independent professional?
If you have young children, do you wish to appoint someone to be their guardian(s)?
If you died and left young children would you wish them to inherit when they reach 18 or would you prefer it later (for instance, when they reach 21)?
Do you want to leave particular items of property, or specific gifts of money to anybody?
Do you have any particular instructions about your funeral?
Do you have any ultimate wishes as to beneficiaries of your estate, in case all else fails - perhaps a favourite charity?
Do you wish to save inheritance tax?

How does it all work?

The executors’ authority to deal with your estate comes from your will, but in order to show third parties that the will is the valid one the executors usually have to apply to the Probate Registry to be granted probate of the will.

If you do not make a will or there are no executors, your estate will belong to the Public Trustee until administrators are appointed by the court (through a Grant of Administration) to deal with your estate.

Once they have the grant, executors or administrators can distribute the estate to the beneficiaries after payment of all the liabilities and expenses.

But in some cases your will may have set up one or more trusts to deal with your estate. In such cases the executors transfer the trust funds to the trustees, who must look after them in accordance with the terms of the trust.

It is usual, but not essential, to appoint the same people as executors and trustees, to ensure a continuity of understanding and approach.

If you would like to discuss how we might help you, please: