Wills Probate & Trusts
What is a will?
A Will or Testament is a legal document by which a person, the testator, expresses their wishes as to how their estate is to be distributed after their death, and names the executors of the estate who are responsible for its distribution.
Why are Wills important?
A will is important because it gives the testator control over how their estate is distributed, over future care for dependants, and may prevent some inheritance tax liability.
An estate without a Will is subject to Intestacy Laws, which take control of the distribution of the estate away from the testator. The administrators of the estate must distribute it that way, even if they know the deceased would not wish for that to happen.
What benefits are there to having a Will?
- Lets the testator decide how their belongings, such as the family home or a piece of jewelry, should be distributed
- Lets the testator decide how any dependants, such as children, are to be cared for, and by whom
- Lets the testator pass businesses or investments along smoothly, with a minimum of disruption
- Lets the testator make charitable donations, sometimes with conditions, and ensure that they are carried out
- Lets the testator make their wishes for their own funeral clear
What happens if there is no Will?
If there is no will, the laws of Intestacy dictate how the estate is distributed. This will depend on the value of the estate, the deceased marital status and the number of living relatives. The administrators of this estate will have no discretion over this distribution, even if they think it would not be the wish of the deceased. Examples of this include:
- Unmarried partners WOULD NOT inherit any part of the estate.
- Married partners or civil partnership partners who have separated WOULD inherit.
- Dependants may end up in the care of the state.
Does a Solicitor have to be instructed?
A will can be made and witnessed without a solicitor, however this should only be done for straightforward wills as errors or misunderstanding could lead to it being challenged or declared invalid. Both of these would be costly to the estate and could disrupt the wishes of the testator.
A solicitor will avoid those mistakes, and take pains to prevent any possible misunderstandings.
When should a solicitor be used?
Some circumstances are particularly complex and the will should be drafted by a solicitor.
- Owning a house with someone and not being married or in a civil partnership
- Making a provision for the care of a dependant
- When there are several beneficiaries that may make a claim or challenge the will
- When a business or investment is part of the estate
- When property is owned overseas
- When the testator is not resident in the United Kingdom
A solicitor will have the expert knowledge to prevent issues from arising and direct the testator’s wishes as they had intended.
What makes a Will valid?
A Will is only valid if it meets certain criteria.
- The testator must be 18 years old or more
- The testator must be of sound mind – that is be able to think clearly, make their own decisions and be fully aware of the choices they are making in the Will
- The Will must be made or amended voluntarily, without any pressure from anyone else, even those who are not beneficiaries
- The will must be made in writing
- The will must be signed by the testator, in the presence of two witnesses
- The witnesses cannot be the executors or beneficiaries of the estate, nor can they be the married partner of the testator
If a will is invalid, the estate will be distributed as if there had been no will.
Who is in the Will?
A Will includes several different types of people.
- The testator, the person making the will
- The executors, the person or persons responsible for distributing the will
- The beneficiaries, the persons or organisations that will receive a part of the estate
There may be other people named in the will, such as dependants and their carers or guardians.
Who are executors?
The executors are the people the testator asks to distribute their estate. They should be trusted friends or family as the task requires lots of time and responsibility. The testator should always confirm that a person is willing to serve as an executor, as they have the right to refuse.
If the testator would rather not ask family or friends, then solicitors and banks can act as executors, though they will charge for this service. They should be approached before drafting the will as they also have the right to refuse.
If an executor dies, the remaining executors can continue. However if all the executors die or refuse then the will may be passed on to a Public Trustee or Official Solicitor, who will assume responsibility for distributing the estate. This is a rare occurrence, and legal advice should be sought in this instance.
Changing or destroying a Will
A will can be changed via a codicil, which is a document that attaches to the will and makes certain amendments, but leaves the majority of the will intact. These can be used to change guardians or executors, or to adjust the amount a beneficiary will receive. Each codicil must be signed and witnessed just like the will itself, though the witnesses do not need to be the same. There are no limits on the number of codicils, but complex changes would be best done as a new will.
A will would normally include a clause stating that all previous wills are invalid. As such, it is important to date wills to maintain consistency.
A will can also be destroyed by the testator. However, all copies must be destroyed entirely, in the presence of a witness. If the wills can be reassembled, or another copy is found, the will may be found valid. Accidental destruction of a will, in a fire for example, will not make it invalid.
Storing a Will
A will should be stored in a safe place. A solicitor will normally store a copy if they have drafted it, and some banks may hold them. Otherwise a safety deposit box or a safe within the house may be appropriate. Finally a copy can be stored with the Principle Registry of the Family Division of the High Court.
Contesting a Will
A will can be contested if there is reason to believe that it was not properly made. This is a highly complex area of law, and should only be undertaken by a solicitor. There are strict time limits for any challenge, so do not hesitate in seeking legal advice.