Making a Will
Making a will is a fairly straightforward thing to do but very easy to put off. It is an important part of estate planning and it is the one way that you have available to ensure that you decide how your assets are to be shared out.
To be valid the will must satisfy the following:
- be in writing
- be signed and witnessed
- you must be over 18 before you can make one
- you must be mentally capable and understand the effects of making a will
- it should be your decision to make a Will and not caused by pressure from another person
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.
You will need to ensure that the people you choose to be your witnesses are not people that you intend to leave anything to as, although the will is still valid, 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.
What happens if you do not make a will
If you do not make a will, the law will decide who inherits what and this may mean that your partner receives very little and your estate goes to others that you would not have chosen to receive an inheritance.
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 are in a same sex relationship, they will not automatically inherit your estate
- you can decide whether or not to leave anything to an ex-partner who you have divorced (or a partner from a since 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, it avoids disputes between relatives and unnecessary legal costs
- 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 one if you are in a new marriage as a marriage usually cancels any previous Will and you could find yourself with no Will and 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 very recently following the Inheritance and Trustees Powers Act 2014 becoming law on 1st October 2014.
The act makes significant changes to the law on intestacy and simplifies the sharing of assets when someone dies without having made a Will.
The new rules in the Act do away with the surviving spouse (or Civil Partner) but no children having to share assets between their spouse and parents/or siblings. Now the new rules in the Act mean that if someone dies intestate their estate will be distributed to their surviving spouse (or Civil Partner.)
The distribution of assets where someone is survived by their children as well as by a spouse (or Civil Partner) is simplified too.
The statutory legacy of £250,000 remains but there is no longer a statutory life interest, with the surviving spouse now receiving their half of the remaining estate outright.
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 £15 is payable)
- Keep it yourself - but ensure that your executors will be able to find it
- Solicitors (a charge may be made)
For further information please contact us or telephone us on 0800 0699 784 and we will forward your enquiry to the The National Careline solicitor.