Whether you’re creating a will for the first time, updating an existing will, or reviewing the will of a friend or family member, our guide to wills and will writing gives you all of the information that you need to get started.
What is a will?
A will is a legal document that explains how you want your assets (estate) to be distributed after you have died. Your estate may be made up of a combination of: savings and investments, property, pensions, personal belongings, insurance and digital assets. The process of distributing someone’s estate is known as ‘estate administration’.
What’s included in a will?
Within your will you can name your beneficiaries and what and when each of them will inherit after your death. You can also leave instructions regarding care for your children and if you have specific requests for your funeral. Many people even make requests regarding care for pets in their wills. The will should also include details of the person that you would like to ensure that all of these requests are actioned correctly. This person is called the ‘executor’.
Who can draft a will?
You do not need a solicitor to draft a will for you. You can do it yourself if you wish. However, it is a good idea to use a solicitor, or at least have one review the will, to ensure that it will have the intended effect in practice. Disputes relating to inheritance can be costly and distressing to your beneficiaries and may be avoided by getting the right advice at the right time.
It is also possible to engage a will-writing firm to create your will for you. However, since such firms are not regulated by the Law Society, there is less recourse available if things go wrong.
It is particularly important to seek professional legal advice if you co-own property with someone who is not your spouse or civil partner, if there is a business to be considered or if overseas property makes up part of the estate.
When does a will become legally binding?
A will becomes legally binding (assuming it has been made voluntarily by an individual aged 18 or over in sound mind) once it has been:
- signed by the person making the will in the presence of two witnesses, and
- signed by the two witnesses, in the presence of the person making the will.
It is not a legal requirement that the will be dated, but it is a good idea to include the date on which the will was signed.
Who can witness a will?
So long as they are over the age of 18 and not blind, anyone can be a witness to the signing of a will. They do not need to be a professional person or to possess any specific qualifications.
It is not permitted for a witness or their spouse to benefit from a will. If a witness is also named as a beneficiary (or is the spouse of a named beneficiary), the will is still valid, however, that beneficiary will not be able to inherit under the will.
How should a will be stored?
Once a will has been completed it should be kept somewhere safe. There are no set rules about where this should be, it could be at home, with a solicitor or accountant, or with a bank.
Once made, how do you change a will?
It is a good idea to review your will every few years or after every significant life event (such as a marriage or a birth) to ensure it reflects your current circumstances and wishes for after your death. It is possible to make small changes using a ‘codicil’ – a legally binding document used to add to, modify or revoke part of the existing will. A codicil must be signed and witnessed in the same way as a will.
For more extensive changes, it is best to revoke and destroy the existing will and create a new replacement one.
Can a will be changed after death?
A will itself cannot be altered after someone has died, however, the effect of it can be. You can change the effect of a will to:
- reduce the amount of Inheritance or Capital Gains Tax payable
- provide for someone who was left out of the will
- move assets into a trust
- clarify any uncertainty over the will.
Changes must be made by using a ‘disclaimer’ or a ‘variation’ within two years of the death.
A ‘disclaimer’ is when a beneficiary decides not to accept the gift left to them in the will at all. Their share simply goes back into the estate and is distributed in accordance with the remaining terms of the will.
A ‘variation’ is used when a beneficiary decides that they would like their inheritance to go to someone else – in whole or in part.
A beneficiary can only make changes to their own share of the inheritance and not the shares of other beneficiaries. However, if they all agree, the beneficiaries can change how the whole estate is distributed. It is not possible to use a variation to increase your own share of inheritance or to change other people’s inheritance without the consent of other beneficiaries. It is also not possible to use a variation to change the executors or guardians named in a will.
If the amount of tax that is due following the death is affected by the variation, then HMRC must be informed of the changes.
Can you change a will with a power of attorney?
If you hold power of attorney then your rights to act on the other person’s behalf do not extend to making or changing a will, either before or after death.
What happens when someone dies without a will? What are ‘rules of intestacy’?
If someone dies without leaving a valid will – or intestate – standard rules known as the ‘rules of intestacy’ govern what happens to their estate. These rules are set out in the Inheritance and Trustees’ Power Act, and they decide who inherits what based on the family connections of the person who died. However, the rules of intestacy don’t take into consideration the nature of these relationships, or who may be most deserving or in need.
The estate is allocated to family members in a specific order. It is usual for any surviving spouse or civil partner to inherit the lion’s share of the estate; however, unmarried partners won’t inherit anything.
The rules of intestacy will apply in the following ways:
The person who died is survived by a spouse/ civil partner and children
The spouse or civil partner will inherit all assets up to a value of £270,000 as well as all personal possessions, whatever their value. The remainder of the estate is then shared, with the spouse or civil partner receiving half of what is left, and the other half being divided equally between any surviving children. If a child has already died, any children they had will inherit in their place.
The person who died is survived by a spouse/ civil partner and NO children
The spouse or civil partner will inherit the entire estate and all personal possessions.
The person who died was unmarried and has children or grandchildren
The estate will be divided such that each child will receive an equal share of the estate when they turn 18. If the child has died prior to inheriting, any grandchildren can inherit their parent’s share. The rules of intestacy treat biological and adopted children equally.
The person who died was unmarried with NO children
In such cases, surviving relatives will inherit the estate of the person who died in the following order:
- their parents
- if their parents are deceased, to their brothers and sisters
- if they have no siblings, to their grandparents
- if their grandparents are also deceased, their uncles and aunts or their children will inherit.
The person who died was unmarried with no living relatives
The entire estate will go to the Crown if a person dies without a valid will and was unmarried with no living relatives. 12 years after their death, the estate will pass to the authorities if no claims are made by any surviving relatives within this time.
Despite the existence of the rules of intestacy, it is still vital to make a will since the rigid rules may not be suitable for your situation or wishes, unmarried couples are not provided for, and there may be more tax-efficient ways of distributing your estate.