• Home
• The basics
• Bereavement

Wills, executors and probate - part 1

1 February 2009

When you die there can be a number of legal issues to be faced by those who survive you.

For the sake of your children, your family and friends, pay close attention to this section, for it shows how death can be every bit as complicated as life.

There is no simple or elegant way to categorise these issues, the law is designed to be precise, rather than poetic. Hence, the title ‘Wills, executors and probate'.

What is a Will for?

Well over half of the population in the UK don’t have a Will. In fact, the Society of Independent Financial Advisers estimates the figure to be as high as 76%.  Source – www.impartial.co.uk

Understandably, you might imagine that when you die, everything you own will pass to your partner.  Unfortunately this is not always the case, so disputes over Wills are not uncommon.   And if, through your life you have been well heeled and well married, and have made several Wills, then deciding which is the definitive ‘Valid’ Will after your death can be highly problematic.

An untidy legacy, with no Will, begs the question: ‘What did you really want?’

And that is what a Will is for: to say what you really want to happen to your property (your Estate), who you want to benefit, which of your children and other members of your family and in what measure, how and when your wealth should be distributed, even down to the funeral arrangements and how you would like to be remembered.

What happens if I don't have a Will?

If you die without making a Will you are said to die intestate. In which case, it is the law who decides who gets what, not you.  This fact alone should be enough to persuade you to make a Will. For the outcome of the Intestacy Rules rarely reflect what people want.

When you are alive you can make all the promises you want - to your children, grandchildren, family and friends, even to the cat.  But unless you have made a valid Will these promises may turn out to be empty. Your desired wishes may never be expressed, after you have died. These days there are so many different family arrangements that the law may not recognise your happy family set-up. When the law refers to "children" this only includes natural, adopted and illegitimate children, it does not take into account step-children.

A frequent misunderstanding is that your spouse or civil partner will inherit everything.This is not true. He or she will not necessarily inherit the whole of your estate. The amount they will receive will depend on:

• How much your estate is worth
• Which of your blood relatives survives you

Below is a simple chart which tells you who will inherit if a deceased person leaves the following relatives:

Source: www.legalsupportservices.co.uk February 2009

This chart is not intended to be a statement of the law nor is it intended to be legal advice.

If you are an executor or personal representative and are not sure of your rights and obligations you should seek legal advice before distributing any assets held in an estate.

Figures correct as of February 2009

In Scotland and Northern Ireland the law differs as do the Rules.

Other Considerations
The intestacy rules may not deal with your situation in the way that you would wish if :

• You are living with someone but are not legally married or in a civil partnership and you want  your partner to inherit some or all of your estate.
  
• You have no living relatives and wish to leave your estate to your friends or to a charity.  If you have no living relatives then ultimately your money will go to the crown (see above).
   
• You have distant relatives who you rarely or never see and you want to leave your estate to friends or charity.
  
• You are legally married or in a civil partnership and you don’t wish your spouse/civil partner to inherit anything.
  
• You are legally married or are in a civil partnership and have children from another relationship who you wish to ensure receive something from your estate.
  
• You have dependant relatives e.g. children under 18, elderly relatives or relatives with a disability who have special needs and you want to make sure that they are looked after and provided for. Making a Will allows you to appoint guardians for the children and also set up trust funds to provide for dependants.
  
• Your estate is large and may be liable for Inheritance Tax and you may wish to make arrangements for tax planning.
  
  So you see it can be a lot more complicated to die intestate.  So if you haven't made a Will already, maybe now's the time to think about it.

Writing a Will

Don't DIY
Although making a Will is quite easy and relatively inexpensive to do, it can be a daunting prospect if you don’t know where to start.

Writing a Will yourself, whilst possible, is not advisable. The potential for errors and mistakes can mean a self-written Will is not valid, so it’s really best to speak to a solicitor.

A list of solicitors is available from the Law Society on 0870 606 2555 or on their website at www.lawsociety.org.uk

However, if you are determined to go ahead you will find Will writing kits in most stationers or you could download ready made templates for a Will online, which will at least give you an idea of the things you need to think about when preparing your Will. 

Some charities offer Will writing services in return for a legacy (even a small one) so if you support a favourite charity it may be worth looking into what they offer.  For the last few years there has been an opportunity to get your Will prepared, free, in National Will Week. It’s an excellent opportunity to review your affairs and either make a Will or review your existing one.  However, if this date is a long way off, please don't delay in making a Will.

Will or Wills?
You should really think about making several Wills in your lifetime. You have to make sure that your last will reflects your current intentions and is recognised legally as the Valid Will.

You should think about changing your Will when your life changes - when you marry, divorce and separate, set up a business, change jobs, have children, buy a home or experience the illness or death of a close relative or friend. 

What makes a Will valid?
You, the person making the Will (known as the testator), must be over the age of 18 and of sound mind (that is, have the mental capacity to know what you are doing).

You must sign the will in the presence of two witnesses who are neither beneficiaries of the will nor spouses of beneficiaries.

These two witnesses must sign the will in the presence of each other and in the presence of the testator (that’s you, remember). As you can see, it’s starting to get rather complicated and there are other considerations too, which is why it’s worth taking advice from a solicitor.  

Who can see a Will?
Before you die, your will is essentially a private document – and nobody can take a peek at it, without your say so. That said, you may want your family and your Executors to see the Will before you die so you can discuss its provisions with them.

If you do make your own Will, be sure to keep it somewhere safe and, importantly, tell your Executors where they can find it when the time comes.  Some people prefer to let their Executors store the original for them.

After you have died and your affairs have been sorted out the Will can be viewed by others for a small fee. The National Wills register in the UK holds a record of all registered Wills www.willfinder.co.uk and it is a good idea to register your Will. Ask your solicitor about this.

What about Wills overseas?
If you own property abroad, it is advisable to have a Will drawn up to cover your overseas interests. Different countries have widely different laws regarding Wills and inheritance taxes, so you need to seek advice about the legal process in that country.