If someone lives in the UK and dies without a valid will, their property will be distributed by an appointed administrator by the court according to statutory rules for “intestate succession.” Their estate will be divided among their surviving spouse, children, and possibly other relatives in whatever manner the law of that jurisdiction specifies. They will not have a chance to give some of their estate to non-relatives or to exclude some relatives. Additionally, if they have no relatives, their property will go to the state or the Crown rather than to a friend or charity of their choice.
Having a valid Will enables them to:
- Distribute the assets according to their wish
- Support people or organization they love after death
- appoint someone they trust to administer their estate; and
- appoint a guardian for their minor children.
A will has many advantages
- You can often save hundreds of thousands of pounds in inheritance tax – the inheritance tax rate is 40% and applies to all residual assets you have over £325,000 (with some exceptions).
- You can avoid major family disputes by creating a legally binding will that specifies how your estate should be distributed.
- You can save your inheritors literally thousands in extra legal, court, and inheritance tax payments (£9,700 is the average cost of dying without a will according to mainstream will-writer Farewill).
- You can save your inheritors and executors a lot of time, stress, hassle and worry by clearly laying out who is your executor, who is your children’s guardian, and who gets what. You might think that your wife or your husband is going to sort things out for you, but what if a family member starts disputing that after you’re gone? Clarity is always best.
- You don’t want to leave something like the guardianship of your children to the family courts – who may decide in favour of someone you wouldn’t be happy with.
- If you are not legally married to your partner then writing a will ensures your partner will actually inherit something.
- If you have step-children, foster children, or other dependents who are not blood relations, they will not automatically inherit anything without a will.
- It’s a useful exercise in itself for you to reflect properly on death. It also means you’re forced into action from an administrative point of view. How will your executor ever find that random bank account you opened where you’ve still got £200 in?
Yes, it can contain them based on request, however, it is highly recommended that those wishes are discussed with the family in advance, as the Will, sometimes, does not come to light until after the funeral takes place.
Any will can only be exercised after someone’s death.
A Will is drafted to ensure that your estate is to be dealt with in accordance with your wishes.
It will also state who you have appointed to deal with the administration of your estate (your executors) and ensure that your executors have all the necessary powers they need to deal with the administration of your estate.
Anyone can make a will in England & Wales if two conditions are met:
- They are 18 or above, and
- They have a mental capacity meaning a sound mind, memory and understanding
It is worth noting that a Will is not just for the elderly. It is also for anyone who wants their estates to be distributed according to their wishes or wants to appoint a guardian(s) for their minor children as this will prevent many conflicts within the family.
A will is made to distribute your wealth according to your wishes in your absence.It may also be the best way to avoid unnecessary legal cost and financial difficulties for the loved ones when every penny counts.
In addition to saving time, money and efforts, a will not attract the unavoidable but it is an additional layer of protecting your assets and loved ones and may also save you from the 40% of inheritance tax.
An executor is the person you wish to deal with the administration of your estate after your death. Your Executors (otherwise and in usual cases also your trustees) shall have the responsibility to ensure that your estate is distributed in accordance with your wishes. Your beneficiaries can also be your Executors.
The Executors are responsible to:
- determine what property and other assets you own at the date of death, as well as your liabilities.
- arrange for current valuations of your personal possessions, property, investments any pension or insurance entitlements due including any debts and bills
- arrange your funeral and arrange for the payment
- establishing Income and Inheritance Taxes liabilities and completing the necessary tax returns for the Revenue
- completing and submitting the necessary probate forms and submitting these to the Probate Registry
- arrange the clearance and sale of any property (should this be required)
- collecting assets and paying any debts
- arrange to pay any legacies to legatees before the remainder of your estate is distributed in accordance with will.
- compiling detailed accounts to give to the main beneficiaries, before distribution of the estate and in accordance with will
- in the case of children being beneficiaries, then the Trustees shall hold the monies on trust until required then distribute
Yes. A Will gives a parent the opportunity to fulfil their wishes and clearly state who will care for a child / children in the event of the death of the parents or guardians. Otherwise, the court will decide the guardian(s) and it might be someone you do not want them to be responsible for child/children. Why leave this to the court when we can make the decision ourselves.
For additional information, if a mother is not married to the child’s father, or the father’s name is not on the child’s birth certificate, then the mother would need to appoint the father as the first chosen guardian. If this is not done then according to the current law, the father would not have any automatic rights as guardian, if the mother died first.
Yes, it is possible to amend or revoke a will at any time and as much as you want before death. In some circumstances, however, a Will is automatically amended or revoked, such:
Upon divorce, a Will is altered insofar as any gift to a former spouse is rendered invalid.
Upon marriage (unless made in contemplation of the event), a Will is revoked.
In addition, it is highly recommended to destroy the old Will when a new Will is written to avoid any confusion at a later date.
A codicil is an amendment to a Will. A codicil is used when someone is satisfied with their Will but wants to make minor adjustments. The original Will remains intact but specific changes can be made, such as adding or deleting a beneficiary. It is worth noting that a codicil is signed and witnessed (executed) in the same manner as a Will.
Yes, any will can be challenged, but it will entirely depend on the discretion of the judge to accept or not. It is also possible for certain people to make a claim on your estate if it can be shown that at the time of your death your Will does not make reasonable provision for them. Those people can be an individual who has been disinherited or insufficiently provided for. Any claim is allowed but it will be assessed by the Court.
In the case that those claims have been expected, it might be advisable to write a letter advising the executor(s) what to do in those circumstances.
Here are some individuals who may have a right to potentially challenge the will in the Court based on the Inheritance (Provision for Family and Dependents) Act 1975:
- Any partner of yours, if you have lived as man and wife or civil partners for at least 2 years prior to your death
- Any former wife or civil partner provided he or she has not remarried or has entered into a subsequent civil partnership, or an order of the Court bars any claim
- Any child of yours
- Any person not being your own child who in the case of any marriage of yours was treated by you as a child of the family in relation to that marriage
- Any other person who immediately prior to your death was being maintained wholly or partly by you
In a similar manner, it is well recommended to also produce a letter for the executor(s)
in case the will get challenged after death if it is anticipated that an individual may have a claim on the estate.
If you do not make a valid Will before your death, then the Intestacy Rules will apply. In the Intestacy Rules, the orders are spouse, children, children’s descendents, parents, siblings, sibling’s descendants. The law does not provide well for modern family situations and the Intestacy Rules are complicated, but generally your surviving spouse will benefit in precedence to anyone else. However, may not receive all of your estate, depending on whether or not you have children. If you do not leave a surviving spouse or children then the intestacy rules set out who will benefit from your estate (depending on which of your relatives have survived you).
You may also end up having unnecessary and horrendously complicated statutory trusts of intestacy, which will add to the legal costs of administering your estate.
If a valid Will has not been produced then the law also sets out who is allowed to administer your estate, and possibly not the personal representatives which you would have appointed.
In case potential beneficiaries cannot be found then the estate will go to the Crown.
assets shall pass automatically to the survivor and not in accordance with your Will. If your assets are held as Tenants in Common then the position is such that your asset, or your share of that asset, is held by you and such asset or your share of such asset shall pass in accordance with your Will.
In relation to your property, if held jointly, we strongly suggest that you ensure that your property is held as ‘Tenants in Common’, so that the property or your share of your property can pass in accordance with your Will.
Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep a will:-
- at home,
- with a solicitor or accountant,
- at a bank,
- at the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry for safe keeping, or
- With us