What is a Will?
A Will is a legal document that sets out what happens to a person’s assets after their death.
It needs to comply with legal formalities in accordance with the Wills Act 1837 (as amended).
To be properly effective, a Will needs to be:
Made voluntarily, without any undue influence or duress
Signed by the person making the Will (known as the Testator) in the presence of two independent witnesses, who should not be beneficiaries under the Will or the spouse or civil partner of a beneficiary
Signed by both witnesses in the presence of each other, and in the presence of the Testator
What happens if I die without a valid Will?
Your assets would be distributed according to strict rules that are based on your closest relatives taking or sharing what you leave.
It is a common misconception that your surviving spouse will automatically inherit everything.
This is dependent on the value of what you have left.
If you are closer to one relative than to another, or if you are estranged from your family and never see them, it makes no difference; they will still inherit a share of your assets.
Further if you should survive your spouse, any relative of your late spouse whom you regard as ‘family’ – perhaps your late husband’s daughter or niece who helps with your shopping and helps you deal with paying your bills – will receive nothing at all.
If your spouse survives you, they may not receive everything you leave and may have to share it with your cousin whom you have not seen for many years!
If you are separated but not divorced – even if informally you have lived separately for many years – your estranged spouse will still inherit some or all of what you leave.
Friends and charities will receive nothing.
If you have a long-term partner but are not married to them, they will receive nothing at all.
The person who sorts out your affairs may not be the person you would have chosen.
Inheritance tax may be payable, which perhaps could have been avoided by your having a Will.
All this being so, it surely must be clear that it is essential everyone should have a valid, up to date, properly drawn up Will.
For how long is a Will valid?
Once correctly signed and witnessed a Will is valid indefinitely, unless and until it is revoked.
Revocation can happen in a number of ways.
If you physically destroy your Will, this will usually revoke it.
However, if you choose to do this please ensure there are no copies still in existence. Otherwise your family may search in vain after your death for the original of a Will that no longer exists.
If a Will is destroyed accidentally – perhaps in a fire – this will not revoke it as long as there are copies and it is clear the Will was destroyed accidentally.
In this case, your solicitor will probably be able to have a copy Will accepted by the Court with the assistance of sworn statements by persons familiar with the circumstances.
However, it makes sense to keep the original Will in secure fireproof storage with your solicitor. We have such a facility for our clients.
As long as you are mentally competent you can change your Will as often as you wish.
In fact, it is important to have a look at your Will from time to time to ensure it hasn’t become outdated with changes in your circumstances, such as the death of any of your named beneficiaries, or people you are no longer in touch with being named.
Making a new Will can revoke your existing one, as long as there is wording in the later Will revoking the earlier one. All professionally drawn up Wills should always include this wording.
What if I (re)marry or obtain a divorce after I have made my Will?
If you marry or remarry after the date of your Will, the Will is automatically revoked unless it had been written specifically in contemplation of your intended marriage and this had been stated in the Will.
Contrary to popular belief, getting divorced does not revoke your Will. However, any gifts to your former spouse or their appointment as an Executor (the person who deals with the administration of your affairs after your death) will not have effect.
The Will is interpreted as though they had predeceased you, unless in the Will you had specifically stated that any such gifts, or appointment, are still to have effect even if at your death you are no longer married to that person.
Can I change my Will simply by making changes on the one I have?
Once a Will has been correctly signed and witnessed you should never make physical changes to it. If you do, it will usually be the Court who has to decide whether these were made before or after the Will was originally signed. Needless to say, this will prove an expensive exercise.
If you want to change your Will, it is a relatively simple matter for us to retrieve a Will we have drawn up from the digital archives, make the necessary changes and to produce a new one for signing and witnessing.
What is an Executor?
Your Executors are the people you appoint in your Will to deal with sorting out your affairs after your death.
For more details about what is involved, click here.
In brief, they collect in your assets, pay all your debts and any inheritance tax, pay any specific legacies you may have left in your Will and then distribute the remainder of your assets as stated in your Will.
If you have left money to minors or in trust, the Executors will generally also act as Trustees and look after this.
You can appoint one Executor if you choose, but you should appoint someone to act if your first choice is unable so to do.
However, if any money or other assets are likely to be held in trust or for the benefit of minors, then you should appoint two Executors.
If you have a spouse, then unless they are already quite old it is usual to appoint them as an Executor.
The Executor can deal with his or her responsibilities personally.However, unless the estate (the assets and liabilities of the deceased) is of modest size and completely straightforward, the Exectuors will generally have a meeting with solicitors specialising in this area of law with a view to instructing them to act on his or her behalf.
If the Will has not been professionally prepared, the Executor should seek assistance if he or she suspects there may be problems with the Will, such as ambiguity as what was meant in a vague description of a gift (e.g. “my cash”), or who should benefit.
The Executor has personal liability for certain matters when administering the estate, where he might find himself or herself personally liable for any loss, including the following:
Failing to submit tax returns to H.M. Revenue & Customs within the required time scales
Valuation of property which H.M. Revenue & Customs determine is an under-valuation warranting a penalty
Negligent failure to safeguard assets of the estate
Distributing assets of the estate incorrectly
If your affairs are other than totally straightforward, if you have children who may argue, or if your close family does not live locally, it is often sensible to appoint the solicitor who drew up your Will as an Executor, possibly to act with a member of your family or a close family friend.
If we are appointed as Executors we make no charge for such an appointment in your Will. However, on your death we shall deal with winding up your affairs, and of course we charge for doing so in our usual manner, as this is our area of expertise.
What is a Guardian?
If you have any children under 18, when you make your Will you should consider who you would like to be the person or people who will be legally responsible for your children if neither parent survives – their legal Guardians.
There is often disagreement among family as to who should care for children, and without your wishes set out in your Will the family would have to ‘second guess’ whom you wish to act.
Can I leave my money to anyone I like?
Yes, you can.
However, if you have left a spouse or civil partner, an unmarried partner with whom you had been co-habiting for at least two years immediately before your death, or at your death you were maintaining a former wife or a child, then under the Inheritance (Provision for Family & Dependants) Act 1975 any of these can apply to the Court for a share of your estate if you have not made reasonable financial provision for them.
What constitutes ‘reasonable’ differs according to individual circumstances, and either we or other solicitors specialising in this area of law would be able to advise you accordingly.
I have lived with my partner for years; it’s as though we are married.
Not in the eyes of the law.
If you are not legally married to your co-habitee (or have not entered into a legal civil partnership if it is a same sex relationship), then under the intestacy rules they will be entitled to absolutely nothing from all you have left, and will have to apply to the Court for a share of your assets.
Needless to say, this is unlikely to engender goodwill with those members of your family who would otherwise inherit, and likely to prove stressful, expensive, and probably divisive.
Whether or not you wish your co-habitee to inherit, if you have a partner to whom you are not married you should ensure that you both have professionally prepared Wills drawn up.
Is there anything I can’t leave in my Will?
Perhaps surprisingly, there are quite a few assets that cannot be left by your Will.
Any ‘death in service’ benefit is often at the discretion of the company’s trustees and is generally paid direct to your next of kin.
Similarly, it is possible that life policies you might take out have been placed in trust by you, and again the trustees will pay these direct.
When people get divorced, it is not unusual to have forgotten about such policies. On the later death of the deceased, a lump sum will often be paid to the beneficiary nominated by the deceased to take the proceeds of the policy – if he has not changed this, it may be the wife he divorced years earlier!
Joint bank accounts will pass automatically to the co-holder of the account.
If you own a house or flat jointly with your spouse, partner, or somebody else, it is imperative you ascertain whether this is held as ‘beneficial joint tenants’ or ‘beneficial tenants in common’ if you do not wish your ‘share’ to pass to the co-owner.
When taking instructions for your Will, we can make the necessary search to clarify this.
Can I give my girlfriend or my future second wife the right to live in my property?
Yes, you can do this in two ways.
You can either give them the right to live there as long as it is their main residence.
You can give them a life interest, in which case they could rent it out and keep the rental income.
Either way, they do not own the property outright, and on the termination of their interest the property will pass to whoever you have named in your Will.
It is a good way of ensuring your assets eventually pass to your own children or other family, while making provision for your life partner.
We can explain the relative merits and any disadvantages of such a gift.