Research shows that less than half of the UK population has a will. However, if you die without having a will (known as dying intestate) then the consequences can be dire for your surviving family members.
Drafting a will is a relatively straight forward process. This guide is designed to explain the basic principles.
Why is it important to make a will?
A will is a legal document that states your wishes for the distribution of your property and assets (known as your estate) when you die. If you die intestate, the Rules of Intestacy will govern how your estate will be distributed.
What constitutes a valid will?
Under section 9 of the Wills Act 1837, in order for a will to be valid it must be:
- in writing
- signed by the testator
- the signature is witnessed by two witnesses at the same time
The will also be made voluntarily and by a person of sound mind, otherwise it has the potential to be challenged in Court.
What is an executor?
Executors are the people you appoint to administrate your will following your death. They are responsible for submitting your will to probate. They will have to collect together all the assets of the estate, deal with all the paperwork and pay all the debts, taxes, funeral and administration costs out of money in the estate.
Executors can also be beneficiaries of the will.
Can I make provisions for my children’s’ care if I die before they are adults?
Yes. In your will you can appoint Guardians for your children and make arrangements for where and with who they will live with and provide for them financially.
Do I need a Solicitor to make a valid will?
Not necessarily. However, making a will without legal advice can lead to mistakes and/or lack of clarity. If you have complicated finances or many beneficiaries, it is highly recommended that you obtain professional legal advice. You can find a list of solicitors specialising in wills and probate here.
Do I need to update my will?
Yes. If you get married or enter a civil partnership your existing will is automatically cancelled. You should also update your will if you get divorced, have children or by a property.
Can I make a joint will with my spouse?
A joint will cannot be made in the sense that there cannot be just one document. However, spouses can make wills which dispose of property in an identical way. These are called mirror wills and each testator can alter his or her will. These wills can be made in a legally binding, contractual agreement by inserting provisions into the wills that the testators will not alter their wills. There can be alterations by mutual agreement while the testators are still alive, but mutual wills will usually include provisions which will sanction the testator who alters his or her will after the other testator has died.
How much does a solicitor charge for a will?
It will vary depending on how complicated the will needs to be. A Solicitor will charge upwards of £150 for a basic will.
What should I include in my will?
There needs to be sufficient identification that the will is yours. The usual things included in a will are distributions of property, arrangements for looking after your children (if they are under 18), an executor (the person who manages your estate after you die) and what should happen if the people who you want to receive property die before you do. You can include conditions on dispositions and create a trust in the will. Your will needs to revoke all prior wills. Your Solicitor will ensure that all the necessary inclusions are provided for, as well as any additions you want to make which are particular to your circumstances.
I am not married but I live with my partner. Should I make a will?
Absolutely. If you die without a will your de facto partner will not inherit any of your property unless you are beneficial joint tenants in a property you both own.
Who can I appoint as executors?
You can appoint any person (over the age of 18 years) of your choice.
How can I avoid inheritance tax?
The inheritance tax rate is 40% of the value of the estate which is over £325,000. It will be paid by the executor using the estate’s funds. Inheritance tax will not be charged if it is stated in your will that your property is to go to solely to your spouse or civil partner. If you die in testate there may be dispositions to other family members and tax will be charged on this.
If you have a life insurance policy this should be put into a trust. Trusts can be utilised in other ways to avoid inheritance tax. Additionally, if you make tax-exempt gifts to your intended beneficiaries at least seven years before your death, these dispositions will not be calculated as part of your estate.