Wills & Probate Solicitors and Barristers Make sure you are prepared for all eventualities and do not leave the distribution of your estate up to the strict rules of the law and other peoples good will to distribute according to your desires. The only way to protect your assets and provide for your loved ones when you are gone is to ensure you have a properly executed will.
Making a Will
It’s easy to put off making a will. But if you die without one your assets may be distributed according to the law rather than your wishes. This could mean that your partner receives less, or that the money goes to family members who may not need it.
There are lots of good financial reasons for making a will:
If you don’t have a will there are rules for deciding who inherits your assets, depending on your personal circumstances. The following rules are for deaths on or after 1 February 2009 in England and Wales, the law differs if you die intestate (without a will) in Scotland or Northern Ireland. The rates that applied before that date are shown in brackets.
If you’re married or in a civil partnership and there are no children the husband, wife or civil partner won’t automatically get everything although they will receive:
If you aren’t married or registered civil partners, you won’t automatically get a share of your partner’s estate if they die without making a will.
If they haven’t provided for you in some other way, your only option is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. ’If you feel you’ve not received reasonable financial provision’ Click here for Inheritance Act Claims.
If there is no surviving spouse/civil partner
The estate is distributed as follows:
It’ll 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.
If you feel that you have not received reasonable financial provision from the estate, 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.
Bear in mind 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 a claim may not succeed. It’s advisable to ask a solicitor’s advice. They would charge for this service.
Inheritance Tax and your will
If you leave everything to your husband, wife or civil partner
In this case there usually won’t be any Inheritance Tax to pay because a husband, wife or civil partner counts as an ‘exempt beneficiary’. But bear in mind that their estate will be
worth more when they die, so more Inheritance Tax may have to be paid then.
However, if you are domiciled (have your permanent home) in the UK when you die but your spouse or civil partner isn’t you can only leave them £55,000 tax-free.
You can leave up to £325,000 tax-free to anyone in your will, not just your spouse or civil partner (tax year 2011-12). So you could, for example, give some of your estate to someone
else or a family trust. Inheritance Tax is then payable at 40 per cent on any amount you leave above this.
Inheritance Tax isn’t payable on any money or assets you leave to a registered UK charity – these transfers are exempt.
As well as making a will, you can use a family trust to pass on your assets in the way you want to. You can provide in your will for specific assets to pass into a trust or for a trust to
start once the estate is finalised. You can also use a trust to look after assets you want to pass on to beneficiaries who can’t immediately manage their own affairs (either because of their age or a disability).
You can use different types of family trust depending on what you want to do and the circumstances. Setting up a trust is complicated and you’ll need to get specialist advice, so it’s normally only worthwhile if you’ve got a large estate. If you expect the trust to be liable to tax on income or gains you should inform HMRC Trusts as soon as the trust is set up. For most types of trust, there will be an immediate Inheritance Tax charge if the transfer takes you above the Inheritance Tax threshold. There will also be Inheritance Tax charges when assets leave the trust. Read our related articles to find out more.
Who should make a will?
If you care about what happens to your property after you die, you should make a will. Without one, the State directs who inherits, so your friends, favourite charities and relatives may get nothing.
It is particularly important to make a will if you are not married or are not in a registered civil partnership (a legal arrangement that gives same-sex partners the same status as
a married couple). This is because the law does not automatically recognise cohabitants (partners who live together) as having the same rights as husbands, wives and civil partners. As a result, even if you’ve lived together for many years, your cohabitant may be left with nothing if you have not made a will.
A will is also vital if you have children or dependants who may not be able to care for themselves. Without a will there could be uncertainty about who will look after or provide for them if you die.
Your solicitor can also advise you on how inheritance tax affects what you own.
You should also consider taking legal advice about making a will if:
Once you have had a will drawn up, some changes to your circumstances – for example, marriage, civil partnership, separation, divorce or if your civil partnership is dissolved
(legally ended) – can make all or part of that will invalid or inadequate. This means that you must review your will regularly, to reflect any major life changes. A solicitor can tell you what changes may be necessary to update your will.
Using a solicitor
Although it is possible to write a will without a solicitor’s help, this is generally not advisable as there are various legal formalities you need to follow to make sure that your will is valid. Without the help of an expert, there’s a real risk you could make a mistake, which could cause problems for your family and friends after your death.
What your solicitor will need to know
Once you have appointed a solicitor, they will need the following details from you.
If you give your solicitor relevant details, they can tell you about any legal pitfalls.
Guardians
If you have any children that may still be under 18 when you die, you may need to name someone as their legal guardian.
Other wishes
Do you have any particular wishes for your funeral?
Do you want to be buried or cremated?
Are there any other instructions?
For example, if you want to be an organ donor this can be included in your will. However, it is also a good idea to record your wishes on the organ-donor register, or to carry an organ-donor card.
Executors of your will
You must also name the people you want to appoint as ‘executors’ of your will – the people who carry out the administration of your will after your death. These could be friends or family members, or a professional such as your solicitor. A good combination would be
a friend or family member and a professional. Ideally, you should choose someone who is familiar with financial matters. Make sure you ask your executors whether they are happy to take on this duty as there are long-term responsibilities involved, particularly if you include a trust in your will. It is a good idea to ask someone younger than you are.
Signing the will
Once the will has been drawn up it is not effective until it has been signed. There are several rules affecting the signature process which, if not followed correctly, will make your will invalid. For example, witnesses and their husbands, wives or civil partners
cannot benefit under the will. Many people use staff at their solicitor’s office to act as their witnesses to avoid this problem.
Where to keep the will
It is important to keep your will in a safe place and tell your executors or a close friend or relative where it is. People often ask their solicitor to store their wills for them. Most solicitors will do this for free, but sometimes there is a small fee.
Keeping your will up to date
You should review your will at least every five years and after any major life change such as getting separated, married or divorced, having a child or moving house. It is best to deal with any major changes by getting a new will drawn up. But it is also possible to make minor changes (or ‘codicils’) to your existing will. In both cases it is best to consult a solicitor
The links below will give you more information before choosing to instruct a solicitor to prepare a will.
www.courtservice.gov.uk/cms/wills.htm
www.legalpulse.com
www.pep-wills.co.uk
www.probatesdirect.co.uk
www.tenminutewill.co.uk
www.willwriters.com
Making a Will
It’s easy to put off making a will. But if you die without one your assets may be distributed according to the law rather than your wishes. This could mean that your partner receives less, or that the money goes to family members who may not need it.
There are lots of good financial reasons for making a will:
- you can decide how your assets are shared out – if you don’t make a will, the law says who gets what
- if you aren’t married or in a civil partnership (whether or not it’s a same sex relationship) your partner will not inherit automatically – you can make sure your partner is provided for
- if you’re divorced or if your civil partnership has been dissolved you can decide whether to leave anything to an ex-partner who’s living with someone else
- you can make sure you don’t pay more Inheritance Tax than necessary
If you don’t have a will there are rules for deciding who inherits your assets, depending on your personal circumstances. The following rules are for deaths on or after 1 February 2009 in England and Wales, the law differs if you die intestate (without a will) in Scotland or Northern Ireland. The rates that applied before that date are shown in brackets.
If you’re married or in a civil partnership and there are no children the husband, wife or civil partner won’t automatically get everything although they will receive:
- personal items, such as household articles and cars, but nothing used for business purposes
- £450,000 (£200,000) free of tax – or the whole estate if it was less than £250,000
- half of the rest of the estate
- surviving parents
- if there are no surviving parents, any brothers and sisters (who shared the same two parents as the deceased) will get a share (or their children if they died while the deceased was still alive)
- if the deceased has none of the above, the husband, wife or registered civil partner will get everything
- if you’re married or in a civil partnership and there were children
If you aren’t married or registered civil partners, you won’t automatically get a share of your partner’s estate if they die without making a will.
If they haven’t provided for you in some other way, your only option is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. ’If you feel you’ve not received reasonable financial provision’ Click here for Inheritance Act Claims.
If there is no surviving spouse/civil partner
The estate is distributed as follows:
- to surviving children in equal shares (or to their children if they died while the deceased was still alive)
- if there are no children, to parents (equally, if both alive)
- if there are no surviving parents, to brothers and sisters (who shared the same two parents as the deceased), or to their children if they died while the deceased was still alive
- if there are no brothers or sisters then to half brothers or sisters (or to their children if they died while the deceased was still alive)
- if none of the above then to grandparents (equally if more than one)
- if there are no grandparents to aunts and uncles (or their children if they died while the deceased was still alive)
- if none of the above, then to half uncles or aunts (or their children if they died while the deceased was still alive)
- to the Crown if there are none of the above
It’ll 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.
If you feel that you have not received reasonable financial provision from the estate, 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.
Bear in mind 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 a claim may not succeed. It’s advisable to ask a solicitor’s advice. They would charge for this service.
Inheritance Tax and your will
If you leave everything to your husband, wife or civil partner
In this case there usually won’t be any Inheritance Tax to pay because a husband, wife or civil partner counts as an ‘exempt beneficiary’. But bear in mind that their estate will be
worth more when they die, so more Inheritance Tax may have to be paid then.
However, if you are domiciled (have your permanent home) in the UK when you die but your spouse or civil partner isn’t you can only leave them £55,000 tax-free.
You can leave up to £325,000 tax-free to anyone in your will, not just your spouse or civil partner (tax year 2011-12). So you could, for example, give some of your estate to someone
else or a family trust. Inheritance Tax is then payable at 40 per cent on any amount you leave above this.
Inheritance Tax isn’t payable on any money or assets you leave to a registered UK charity – these transfers are exempt.
As well as making a will, you can use a family trust to pass on your assets in the way you want to. You can provide in your will for specific assets to pass into a trust or for a trust to
start once the estate is finalised. You can also use a trust to look after assets you want to pass on to beneficiaries who can’t immediately manage their own affairs (either because of their age or a disability).
You can use different types of family trust depending on what you want to do and the circumstances. Setting up a trust is complicated and you’ll need to get specialist advice, so it’s normally only worthwhile if you’ve got a large estate. If you expect the trust to be liable to tax on income or gains you should inform HMRC Trusts as soon as the trust is set up. For most types of trust, there will be an immediate Inheritance Tax charge if the transfer takes you above the Inheritance Tax threshold. There will also be Inheritance Tax charges when assets leave the trust. Read our related articles to find out more.
Who should make a will?
If you care about what happens to your property after you die, you should make a will. Without one, the State directs who inherits, so your friends, favourite charities and relatives may get nothing.
It is particularly important to make a will if you are not married or are not in a registered civil partnership (a legal arrangement that gives same-sex partners the same status as
a married couple). This is because the law does not automatically recognise cohabitants (partners who live together) as having the same rights as husbands, wives and civil partners. As a result, even if you’ve lived together for many years, your cohabitant may be left with nothing if you have not made a will.
A will is also vital if you have children or dependants who may not be able to care for themselves. Without a will there could be uncertainty about who will look after or provide for them if you die.
Your solicitor can also advise you on how inheritance tax affects what you own.
You should also consider taking legal advice about making a will if:
- several people could make a claim on your estate when you die because they depend on you financially;
- you want to include a trust in your will (perhaps to provide for young children or a disabled person, save tax, or simply protect your assets in some way after you die);
- your permanent home is not in the UK or you are not a British citizen;
- you live here but you have overseas property; or
- you own all or part of a business.
Once you have had a will drawn up, some changes to your circumstances – for example, marriage, civil partnership, separation, divorce or if your civil partnership is dissolved
(legally ended) – can make all or part of that will invalid or inadequate. This means that you must review your will regularly, to reflect any major life changes. A solicitor can tell you what changes may be necessary to update your will.
Using a solicitor
Although it is possible to write a will without a solicitor’s help, this is generally not advisable as there are various legal formalities you need to follow to make sure that your will is valid. Without the help of an expert, there’s a real risk you could make a mistake, which could cause problems for your family and friends after your death.
What your solicitor will need to know
Once you have appointed a solicitor, they will need the following details from you.
- What you own
- Details of everything you own, including property, cars, personal valuables, stocks and shares, bank accounts, insurance policies, any businesses you own, and pensions.
- Who gets what?
- Who do you want to leave these assets to?
- How do you want to divide your property between your loved ones, friends or
- charities?
- Are there any conditions you want to attach to these gifts (for
- example, that young people must reach a particular age before they are paid
- money you have left them)?
- Do you want to leave money to charity?
- Family and other beneficiaries
- Details of your family and status. Are you
- divorced or has your civil partnership been dissolved?
- Have you remarried or entered into a new civil partnership? Or are you living with someone without being married to them or being their civil partner?
- Do you have any children or any other dependants? Anyone who depends on you financially can ask a court to review your will if they feel you have not provided properly for them.
If you give your solicitor relevant details, they can tell you about any legal pitfalls.
Guardians
If you have any children that may still be under 18 when you die, you may need to name someone as their legal guardian.
Other wishes
Do you have any particular wishes for your funeral?
Do you want to be buried or cremated?
Are there any other instructions?
For example, if you want to be an organ donor this can be included in your will. However, it is also a good idea to record your wishes on the organ-donor register, or to carry an organ-donor card.
Executors of your will
You must also name the people you want to appoint as ‘executors’ of your will – the people who carry out the administration of your will after your death. These could be friends or family members, or a professional such as your solicitor. A good combination would be
a friend or family member and a professional. Ideally, you should choose someone who is familiar with financial matters. Make sure you ask your executors whether they are happy to take on this duty as there are long-term responsibilities involved, particularly if you include a trust in your will. It is a good idea to ask someone younger than you are.
Signing the will
Once the will has been drawn up it is not effective until it has been signed. There are several rules affecting the signature process which, if not followed correctly, will make your will invalid. For example, witnesses and their husbands, wives or civil partners
cannot benefit under the will. Many people use staff at their solicitor’s office to act as their witnesses to avoid this problem.
Where to keep the will
It is important to keep your will in a safe place and tell your executors or a close friend or relative where it is. People often ask their solicitor to store their wills for them. Most solicitors will do this for free, but sometimes there is a small fee.
Keeping your will up to date
You should review your will at least every five years and after any major life change such as getting separated, married or divorced, having a child or moving house. It is best to deal with any major changes by getting a new will drawn up. But it is also possible to make minor changes (or ‘codicils’) to your existing will. In both cases it is best to consult a solicitor
The links below will give you more information before choosing to instruct a solicitor to prepare a will.
www.courtservice.gov.uk/cms/wills.htm
www.legalpulse.com
www.pep-wills.co.uk
www.probatesdirect.co.uk
www.tenminutewill.co.uk
www.willwriters.com