Making a Will
Making a Will can be fairly straightforward but is one of those things that is often put off! It is an important part of estate planning as it is the one way that you can ensure that your assets are shared out in accordance with your wishes.
To be valid, a Will must:
- be in writing
- be signed and witnessed
- be made by a person who is over 18 years of age
- be made by someone who is mentally capable and understands the effects of making a Will
- be the person's own decision to make a Will and not caused by pressure from another person
Your Will should always state that it revokes all other Wills. Any previous Wills should be destroyed to avoid confusion.
Witnessing your will
Your signature must be witnessed by two people who must be present at the time you sign it. They must not be blind, both must be over 18, they must also sign the document in front of you and this should be confirmed in a clause called an 'attestation clause' which confirms that the will was signed in the presence of all three people.
We recommend that the people you choose to act as your witnesses are not mentioned anywhere in your Will, nor married to anyone mentioned in the Will. Anyone acting as a witness will lose any entitlement to anything you intended them to have. A person acting as a witness cannot also act as an executor of your will.
Assistance with Making a Will
The National Careline offers a Will writing service at very reasonable cost. We can arrange for one of our trained consultants to visit you at home to discuss your wishes and take your instructions. Our professional Will Writers will then issue you with a draft document to review and confirm you are happy with the contents of your Will. We will then bring the final document to you for signing and witnessing and can supervise this process if you wish. Please contact us on 0800 0699 784 if you wish to discuss making your Will through The National Careline.
What happens if you do not make a Will
If you do not make a Will, the law will decide how your assets are given to your surviving relatives. This may mean that your estate is not distributed in the way that you would choose. The law does not necessarily automatically pass your entire estate to your spouse or civil partner, for instance.
By making a Will you can ensure:
- that you can decide on those you wish to receive a share of your assets
- you can make sure your partner is provided for as, if you aren't married or in a civil partnership, they will not automatically inherit your estate
- you can appoint guardians for your children until they are 18, and trustees to manage any inheritance due to your children or grandchildren until they are old enough to inherit
- you can exclude someone you particularly don't wish to inherit from you, for example a former spouse who you have divorced (or a dissolved civil partnership) who may now be living with someone else
- you can plan your estate to reduce your liability to Inheritance Tax (IHT)
- by setting out clearly what everyone is to receive, disputes between relatives and unnecessary legal costs can be avoided
- by making a Will, you appoint an Executor(s) to administer your property and affairs following your death as, before your estate can be distributed, all your debts, including your funeral expenses, must be paid.
- your estate will be settled more quickly thus keeping down the legal costs
- you should definitely make a Will if you are in a new marriage as a marriage usually cancels any previous Will – in this case the intestacy rules would then apply.
It is important that a Will is reviewed regularly, but this is especially so at times of 'life events' such as birth of children, divorce or death. It will take longer to sort out your affairs if you don't have a Will. This could mean extra distress for your relatives and dependants until they can draw money from your estate.
Who will inherit your estate if you don't have a Will?
If you don't have a Will, there are rules for deciding who inherits your assets, depending on your personal circumstances. The rules regarding intestacy (dying without having made a Will), have changed following the Inheritance and Trustees Powers Act 2014 becoming law on 1st October 2014.
The Act simplifies the sharing of assets when someone dies without having made a Will.
The .GOV website explains the laws of intestacy here: https://www.gov.uk/inherits-someone-dies-without-will
The law differs if you die intestate (without a Will) in Scotland or Northern Ireland. Further guidance is enclosed in the links below:
- The Inheritance and Trustees' Powers Act 2014
- Scottish intestacy laws - learn more Opens new window
- More about intestacy law in Northern Ireland Opens new window
- Law Commission - Intestacy and Family Provision Claims on Death
What to do if you feel you have not received reasonable financial provision from the estate
If you feel that you have not received reasonable financial provision from the estate of a person that you relied upon for support, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 - applicable in England and Wales. To make a claim you must have a particular type of relationship with the deceased, such as child, spouse, civil partner, dependant or cohabitee.
You need to remember that if you were living with the deceased as a partner but weren't married or in a civil partnership, you'll need to show that you've been 'maintained either wholly or partly by the deceased' - this can be difficult to prove if you've both contributed to your life together. You need to make a claim within six months of the date of the Grant of Letters of Administration. This is quite a complicated area and you should look at taking the advice of a solicitor, but you will be charged for any legal services provided and a claim may not succeed.
Where should I keep my Will?
Your will may not be required for many years after you make it so it is essential that it is stored safely and that it can be found after your death.
The main storage providers are:
- Banks (charges apply) (WARNING: do not store your will in your safety deposit box. The box can't be opened until Probate is granted and Probate can't be granted without the original Will)
- The Principal Registry of the Family Division (PRFD) (You can deposit your will with the PRFD through any Probate Registry in England and Wales - a fee of £20 is payable)
- Solicitors - a charge may be made.
- Keep it yourself - but ensure that your executors will be able to find it.
For further information please contact us or use our FREE HELPLINE on 0800 0699 784 and we will be happy to help.