Making a Will in England & Wales 2021
Thinking about death isn’t easy. Talking about it is even harder. The reality of our own mortality is a tough topic, but a discussion will ensure your assets are left to the right people.
We provide all the necessary information you need to write a good will, as well as the key reasons why having one is so important.
Why do you need a will?
Why wills are important: An example of how intestacy rules work How to write a will Leaving your legacy behind FAQs Useful links and resources A surprising number of people in the UK haven’t prepared a will. That’s according to research published in 2018 by Macmillan Cancer Support , which revealed that among the over-55s, 42% don’t have a will.
Previous research from Macmillan highlighted people’s reasons for not writing a will. They include not getting round to it, and the beliefs that they either don’t have anything valuable enough to leave or that wills don’t need to be written until you’re older.
Writing a will isn’t just about wealth, though. It’s a legal tool to make sure you pass on the things you want to your loved ones. If you don’t write a will, standard rules and regulations come into play – and these could be very different to your wishes.
Many people may have invalid wills too, with predictions that 1.5 million people may have unknowingly made their will void by getting married. The Macmillan research found several common errors with wills, such as having ex-partners included in the will or not including someone important.
The main purpose of a will is to set out the terms of how your finances will be divided. You may want it to go to children, siblings, friends, or even charities and other causes close to your heart.
A will places the decisions of what happens to your money, property and possessions in your hands. It’s also where you should outline who’ll look after any children under 18 years old.
Types of Wills
- A Basic Will is suitable for people who wish to have a straightforward Will in place to ensure that their assets pass to whom they wish. By preparing a Basic Will, you can choose who you wish to appoint as your executors and guardians of children under 18. You can also make specific gifts of money or property and decide who is to receive the remainder of your estate. Funeral requests can also be included.It may be that you have an existing Will in place already, but that your personal circumstances have changed and you need to update your Will.If you are married, in a civil partnership or cohabiting, you may prefer to make Basic Mirror Wills so that your spouse or partner’s assets are protected too.Online, postal and home visits available
- Property Trust Wills can be prepared to protect at least one half of the value of your home from care fees in the event that the survivor of joint home owners requires residential/nursing care later on in life. Property Trust Wills can also be used to protect your children’s inheritance in the event that your spouse/partner re-marries after your death.Home visits appointment recommended
- Discretionary Trust Wills can be prepared to protect assets or the interests of beneficiaries themselves (i.e. if one of your children has learning difficulties or is having matrimonial or financial problems). Discretionary Trust Wills are also appropriate where there are business interests, to maximise the availability of Inheritance Tax relief without compromising your long term aims for the family.Home visits appointment recommended
- Will vs. Living Trust
There tends to be some confusion between wills and living trusts. Many people believe these are one and the same, but they’re not. A will covers how assets are distributed after your death and allows you to appoint a guardian for any minor children.
A living trust , on the other hand, is a more comprehensive estate planning tool that covers not just the issues that a will addresses, but also allows for the establishment of medical and legal power-of-attorney if you become incapacitated. It also appoints a successor trustee to handle any legal and financial matters upon your death. Living trusts typically cost £1,000’s or more to establish but are considered more complete planning tools compared to a will.
- Do I Need A Living Will ?
A living will is an important document every adult should complete with thoughtfulness and care. Doing so protects not only you but your family as well.
min read Living Wills
Here are just some of the benefits of creating a will:
- Makes it easier for your loved ones:
A death in the family is tough for everyone involved. Having a will saves your loved ones from unnecessary additional stress.
- Minimises the chance of disputes.
During stressful times, disputes can be caused by unexpected things. A clear will removes the chance of disagreements over what might have been promised to different people.
- Appoint a guardians for your children.
You can decide who’ll be responsible for looking after your kids, rather than leaving it to the courts. Your choice will influence the way they’re brought up, so it’s something you’ll want to include in a legally-binding will.
You can include additional requests in your will, such as whether you’d like to be buried or cremated.
- Choose who’s responsible for carrying out your wishes.
The choice of executor is up to you. You can ensure it’s someone trustworthy and reliable, as well as a person who understands your wishes.
- You can make sure your assets are divided as you’d like.
An estimated £175 million in assets is lost each year due to relatives dying without having a will (or it being outdated).
Knowing how your assets will be handled after you’ve gone can put you at ease.
The opportunity to give to charity.
You can leave a charitable legacy in your will to remember a cause important to you.
If someone dies without a will, their estate becomes subject to intestacy laws.
This section of UK law is used to decide who’s entitled to the assets from the estate, under the rules of inheritance. This isn’t necessarily a bad thing, as inheritance can be straightforward and leave no-one out of pocket.
However, some people currently don’t have the legal right to inherit:
Unmarried partners Same-sex couples not in a civil partnership Relations by marriage Close friends Carers For others, there are certain restrictions.
Citizens Advice breaks this down into key relationships:
At the time of death, you must have been married or be in a civil partnership to enable your partner to inherit your assets without a will. Divorced couples, or those with a legally ended civil partnership, can’t inherit under the rules. However, people who have informally separated can still inherit.
The amount a partner will inherit depends on whether there are children, grandchildren or great-grandchildren of the deceased still alive.
If the estate made up of what is called Real Estate and Personal Estate is worth more than £250,000 and there are no surviving children, grandchildren or great-grandchildren, the partner inherits:
All personal property and belongings The whole of the estate The situation changes if there are surviving children, grandchildren or great-grandchildren. In this instance, the partner will inherit:
All personal property and belongings The first £250,000 of the estate Half of the remaining estate, with the other half going to any children How much children will inherit depends on if there is any surviving married or civil partner.
If there’s no surviving partner, the entire estate will be shared equally among surviving children.
Where there’s a surviving partner, half of the value of the estate above £250,000 will be inherited equally by surviving children.
Adopted children have rights to inherit under the rules of intestacy. Children also inherit under intestate rules if their parents weren’t married, or didn’t enter a civil partnership. The same goes for grandparents and great-grandparents who’ve died intestate.
Grandchildren and great-grandchildren will only inherit if there’s no surviving partner and no surviving children of the deceased.
Children won’t receive the inheritance until they’re 18 years old. Trustees will manage the inheritance until they’re old enough.
One of the biggest assets you might own is your house. If you jointly own your home, you’ll either be beneficial joint tenants or have tenancies in common. For the former, if one partner dies without a will, the other will automatically inherit the whole property. The same happens with joint bank or building society accounts. Then, it doesn’t count as part of the deceased’s estate when it’s being valued.
It’s slightly different if you’re tenants in common, as the surviving partner won’t necessarily inherit the other’s share.
Parents, brothers, sisters, nieces and nephews of the deceased can inherit under the rules of intestacy. Whether they do can depend on a few things – namely, other living relatives including:
Surviving married or civil partner Children, grandchildren or great-grandchildren Nephews and nieces, depending on whether the parent directly related to the person who has died is also dead The following relatives may have a right to inherit if there’s no other surviving family:
Grandparents Uncles and aunts Half-uncles and half-aunts If someone dies without a will, and without any relatives who can inherit under intestacy rules, their estate will go to the Crown. You might hear this referred to as bona vacantia.
If someone close to you has passed away without a will, you can determine who can inherit their estate by answering some questions at Gov.uk.
Having a will in place ensures your loved ones don’t have to worry about intestate rules. It’s a way to minimise the risk of your estate ending up in the wrong hands, or a larger slice than necessary going to the taxman.
George was responsible for administering his cousin Roger’s estate, after he dies without making a will. He left behind an estate worth around £700,000. Dividing it out took about two years, cost thousands of pounds and ended up with 17 people splitting the estate. Some of them had never met Peter.
George said: “We had to pay £240,000 in inheritance tax, so that hurts. If he had gone to a solicitor or an Estate Planner which he had used, they would have sorted all that out for him.” “It took two years of my life. I took it on as a bit of a challenge really, and I felt obliged to do it because we were close.
“I think my message to everyone would be to please make a will, because then you can give your money to the people of your choice.” Source:
When is the right time to make your will?
Unsurprisingly, a higher percentage of younger people don’t have a will. The older you are, the more likely you are to have one. That’s not to say there’s a ‘correct’ age to write a will.
As you hit key life milestones – such as buying a house, having kids or experiencing the loss of a close family member – it’s likely you’ll realise the importance of protecting your legacy. A will is especially important if you have people who depend on you financially.
- A staggering 60% + of the UK adult population do not have a valid Will
It’s easy to let it slip to the bottom of your to-do list. But here’s why key events in your life will remind you to create or update your will:
Kids are dependent on you for years. But as they grow up, their needs might change, and it could affect how you’d want your estate distributed. You’ll also want to name a guardian.
Getting married, divorced or remarried is likely to change your main beneficiaries. Make sure your will reflects this.
When you buy a house, the value of your estate shoots up. It’ll affect how much you leave behind, and should be reflected in a will.
Similarly, as part of any business succession plan, you should think about who to leave the business to, and how you’d like this to happen.
Someone passing away isn’t just a harsh reminder, but it might change who you’ll be leaving your estate to.
Deciding when to write your will is a personal decision. Only you know when the right time is. You’ll regularly come across sombre reminders of how unpredictable life can be. It’s wise to be proactive when you’re young, even if you feel like you don’t have many assets to leave behind. Among other things, you could have savings, digital assets and a car. It’s also your chance to leave something to charity.
If you die unmarried or without children, your assets – no matter how large or small – will typically go to your parents if you don’t write a will. This might not be your intention. A will is a way of ensuring your property and money goes to the people you want.
Whatever age you write it, you should aim to revisit your will every five years to see if anything needs updating.
Andrew Johnson, money expert for the Money Advice Service, told the Guardian:
“In theory, you could scribble your will on a piece of scrap paper, and as long as it was properly signed and witnessed it should be legally binding. But that doesn’t mean it’s a good idea.” Although you can write your own will, it’s important to get advice to make sure it’s legally valid. Your other options are to:
Using a solicitor or a Will Writing Service can help you meet the necessary conditions and avoid any ambiguity, as your will must meet certain criteria:
You must outline how your estate should be shared.
You must clarify the will was made when you had capacity and is of sound mind under the precedent case Larke vs Nugus to make your own decisions, and without pressure on who to leave things to.
It must be signed and dated by you in the presence of two adults and then signed by them in your presence. These people can’t be relatives or named beneficiaries
What should you include?
Any good will should cover four essential things:
- Who will benefit from your will
- Who should look after your children (under 18 years old)
- Who your executor is – the person to carry out your wishes
- What happens if the people you want to benefit die before you
The more detailed and accurate your will is, the less chance there is of any confusion. However, the amount of detail required will depend on how complicated your estate is.
When you’re creating your will, there’s one final thing to remember. A will isn’t just about passing on wealth, but is also a way of saying who’s important to you. Whether it’s intentional or not, a will carries additional weight with it. Always bear that in mind, and ensure it reflects the way you feel about your loved ones.
Executor and their Roles
As part of writing your will, you’ll choose an executor. This is the person who carries out your wishes after you die, with responsibilities including:
Making sure all estates are safe and secure after the death Collecting all assets and money due to the estate Using the estate to pay off any outstanding taxes and debts Distributing the estate, as set out in the will It’s no easy task. While people typically choose family and friends, it isn’t always a role they’ll want to take on – especially if your estate is large or complicated. In these instances, it might be better to appoint a professional executor.
The following people can be executors:
Family and friends Solicitors Accountants There’s nothing to stop you naming a beneficiary as an executor. The only rule is the person must be aged 18 or older.
You can also choose more than one executor, although only up to four can apply for the official document needed to start dealing with your estate – the Grant of Probate. Executors must act jointly, so common guidance is to name two who can share the responsibility.
Expert tips and common mistakes to avoid
There are pitfalls in the will writing process, and mistakes do happen. Before finalising your will, make sure you iron out these common issues:
- Not talking to your family.
Those close to you should know roughly what to expect from your will, as well as where to find the document.
Whatever’s left in your estate after you’ve named your beneficiaries and requests is called the ‘residue’. If you don’t say who this should go to, you create a partial intestacy in your will and can’t control what happens to it.
It’s important to do everything possible to ensure your wishes can’t be contested. Provide details of any personal items you’re passing on and make sure there’s enough information to avoid any disputes.
- Not getting it properly witnessed.
Two adults must sign and witness the will in your presence. They can’t be beneficiaries. If anything is left to a witness, they’ll lose their entitlement to it – but the rest of the will is still valid.
In 2016, £595 million was paid in ‘unnecessary’ inheritance tax, partly due to people not putting their life insurance policies into trusts. Taking care of your financial legacy is something you’ll need expert help with.
All amendments must meet the formal requirements – including being signed and witnessed.
- Not adequately providing for dependents.
There are rules which allow your dependants to claim on the estate if they don’t think they’ve been provided for in your will.
- Failing to provide what happens if a beneficiary dies before you.
It’s possible someone you wish to benefit from your estate might die before you do. You’ll probably want to account for this in your will, and outline who their share should then go to.
Making a statutory will on behalf of someone else
There are certain situations which require people to make, or change, a will on behalf of someone who can’t do it themselves.
According to Gov.uk , this would be necessary if the person can’t understand the following:
What making or changing a will means How much money they have or what property they own How making or changing a will might affect the people they know (either those mentioned in the will or those left out) For example, this might be someone who has had a serious brain injury or illness, or has dementia. To apply and write a will on their behalf, you must:
Fill in and return the necessary forms, including details of the will Tell other people you’ve applied, primarily those you’ve named in your application Attend a hearing (if the Court of Protection decides to have one) Sign the will and have it witnessed Send the will to the Court of Protection, where it will be ‘sealed’ To apply for a statutory will, it’ll cost you £400. If the court decides to hold a hearing, there’ll be an additional charge of £500, on top of any potential solicitor or counsel fees.
Most people will want to leave as much as possible to their loved ones. It’s natural. As such, minimising the tax bill and associated costs is part and parcel of writing a will.
How much does a will cost?
The cost of a will can depend on whether you do it yourself, go to a solicitor, or use an online service. You can buy a simple template to fill in yourself from as little as £10, but it could cost you hundreds to discuss details with a professional. If you’re interested in setting up a trust and there are various, you can expect to pay at least £500. In the middle of the range, a solicitor will charge roughly £100 to £200, or £150 to £300 for couples.
Writing a Will Yourself
You can write a will yourself, although it’s recommended to get it checked over by a solicitor. They’ll ensure it has the effect you want, minimising the risk of any misunderstandings. Ambiguity or errors in a will can cause problems after your death. Sorting these out can result in considerable legal costs, all of which will come out of your estate and reduce the amount you can pass on.
Writing any legally binding document is no easy task. You need a certain level of knowledge, especially if your situation is complicated. If you have any doubts, it’s advisable to get professional help. Less straightforward situations can include:
Sharing a property with someone who isn’t your married or civil partner Wanting to leave money or property to a dependant who can’t care for themselves Having several family members who may make a claim on your will (e.g. a second spouse or children from another marriage) Your permanent home is outside the UK You have property overseas You have a business
Talking to loved ones about your will
One way to prepare your loved ones for what to expect in a will is by talking to them. This minimises the chance of any family resentment or disputes, as they’ll know what to expect. We tend to relate to money on an emotional, not rational, level. That’s why it’s best to have a plan of action.
At the end of the day, it’s your decision. Having a clear idea of what you’d ideally like to happen puts you in a better position to start talking to family and friends.
Talk to people you’d like to leave assets to.
Once you have a rough idea of what you want to happen, you’ve got to be open and honest with your loved ones. This includes explaining why you’re remembering them in your will.
You could have no idea what those close to you place sentimental value on. Give everyone a chance to say if there are any items they’d like to be left.
Inheritance doesn’t have to be passed on equally, but people – especially siblings – will want to know why they’ve been given more or less.
Emphasise that it’s just for now.
Things change. New arrivals might be born, or someone might pass away. Stress you’re happy to reassess your will regularly, and when your situation changes.
How much you reveal about your financial position is up to you. Some people believe it’s a bad idea to set expectations, but it can help with life planning. You’ll know what’s best for your family and friends.
After You Die...
There are things that will need to happen within a relatively short amount of time. Due to heightened emotions, this can be difficult for your loved ones. The executor is usually responsible for most of these tasks, but tends to be supported by other family and friends.
The immediate actions to take care of include:
Getting a medical certificate signed by a doctor Registering the death within five days (in the UK) Applying for probate Contacting a funeral director (most provide a 24-hour service) Funeral directors aren’t essential, but most people find it useful because of their expertise and experience. They’ll also help look after the body until the service.
Other important responsibilities include notifying relevant parties. The government runs a Tell Us Once service, which will report a death to most departments in one go. More advice on this is available at your local register office. Tell Us Once will contact the following parties:
The housing department HM Revenue & Customs (HMRC) The Pension Service HM Passport Office The Driver & Vehicle Licensing Agency (DVLA) The executor can then focus on carrying out your wishes, as outlined in your will.
Finally, here are some commonly asked questions to address:
You can change your will, but you must do it via the correct channels. These official alterations are called codicils, and you might have to pay for them. Codicils are signed and witnessed in the same way as your original document. There’s no limit on how many you can add, but it’s advisable to make a new will for major changes.
You need to keep your will safe which means free from fire, water damage or and demarcation which may render it invalid. You can decide to store it at home, or with:
Your solicitor, Your bank, A company that offers the secure storage of wills like The London Probate Service .Whatever you decide, remember to tell your executor, as well as a close friend or relative so they can find it when the time comes.
Yes. Many people choose to leave behind a charitable legacy. It’s a great way to remember a cause close to your heart.
There’s a tax benefit too. If you leave at least 10% of your net estate to charity, inheritance tax is reduced from 40% to 36%. Depending on the size of your estate, this could cut Inheritance Tax by thousands.
Bear in mind that the amount saved on tax will be offset by the donation to charity.
The Money Advice Service offers an example of this.
Why you should make a will https://www.moneyadviceservice.org.uk/en/articles/why-you-should-make-a-will Making a will https://www.gov.uk/make-will/writing-your-will Why it’s important to make a will https://www.citizensadvice.org.uk/family/death-and-wills/wills/ How to be an executor
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