Please note: this article applies to residents of England, Wales and Northern Ireland and is provided for general information only. It does not constitute financial advice.
It’s not something that anyone likes to think about, but deciding what happens to your estate when you die is crucially important for ensuring that your loved ones are looked after when you’re gone and that your assets are distributed as you would have wished.
Many people think that wills are only necessary for people with a great deal of wealth, but this isn’t the case. There are certain laws governing how a person’s estate is divided if they die ‘intestate’ (i.e. without a will), which might not be what you would expect or intend. For example, if you’re not married or in a civil partnership, even if you co-habit with your partner, they will not be entitled to inherit anything from you unless you specifically mention them in your will. Even if you are married, without children, your spouse will not inherit your entire estate – other living relatives such as your parents and siblings will be entitled to a share. Also, if your circumstances change, for example if you get married, divorced or remarried or have children, this could make your estate more complicated to settle. Another important point to bear in mind is that if you don’t have a will, you won’t have a named executor to carry out the administration of your estate and the responsibility will fall upon your beneficiaries, whom you may deem unsuitable to handle your affairs.
Making a will has other advantages too – planning your estate and who will inherit may help you to minimize the impact of the inheritance tax laws.
To make a will, you must be 18 years of age or older. You must be considered to be of sound mind and it should be written without pressure from any other party. A will must be recorded in writing, and it needs to be signed by yourself in the presence of two witnesses, who must also sign. Beneficiaries of the will and married partners of beneficiaries cannot act as witnesses. If they do, the will won’t be invalidated, but their inheritance will be. The completed and signed will can be kept anywhere you want – at home, at your bank, at your solicitor’s office, at a Probate Sub-registry, a District Registry or the Family Division Registry of the High Court.
The big question for many people is whether it’s necessary to employ a solicitor to set up a will. The answer is no, but it is certainly recommended, particularly if your estate and personal circumstances are rather complex. It’s also easy to make seemingly simple mistakes which could end up having significant consequences. Common errors are not understanding what has to be done to make a will legally valid, changing the will without having it signed by witnesses, failing to make alterations in the event of a change in personal circumstances, forgetting about parts of your estate, or not taking into account that the beneficiary might die before inheriting.
Solicitor charges for setting up a will can vary between solicitors and will also depend on how complex your estate is. If you’re a member of a trade union, your membership may entitle you to a free will-writing service or free legal advice. You can bring down costs by considering in advance what your assets are and to whom you would like to leave them – whether family, friends or charity. This will include property, possessions, bank accounts, insurance policies, pensions and shares. Also think about who you want to appoint as executor of your estate and who you want to look after your children should you die before they reach the age of 18.
You should certainly consider using a solicitor if you have complicated personal circumstances, for example if you live with someone who isn’t your spouse or civil partner, if you have a dependant who is unable to look after themselves, if you have a business or own property abroad, if you don’t live in the UK or aren’t a UK citizen, or if you have lots of family members who may make claims on your estate, such as ex-spouses or children from previous marriages.
If you don’t want to use a solicitor, it’s possible to purchase ‘DIY’ will kits from many high street stationers and bookshops or online providers, which will provide basic guidance.
Remember to make amendments your will any time you have a change in circumstances such as marriage, remarriage, divorce, civil partnership or the birth or adoption of children. You’ll need to be careful in how you amend your will to ensure that it remains valid. It’s not possible to write alterations onto an existing will. Instead you must either write what’s known as a ‘codicil’ or draw up a new will entirely. A codicil is like an addendum to your will. It doesn’t replace the original will, but makes alterations to one or more of the sections. Only the person who created the original will can make a codicil, and it must be signed and witnessed in the same way as the original will (although not necessarily by the same witnesses). It’s only suitable for making small and uncomplicated changes such as increasing or decreasing the amount of money left to a beneficiary, adding a new beneficiary or changing the executor. You can add as many codicils as you want to your will, but if you have lots of amendments or complex changes it’s best to start afresh with a new will altogether. When you draw up your new will, you should insert a clause at the beginning to explain that this new will revokes all previous wills and codicils. Your old will is no longer valid after you do this (and have your new will signed and witnessed), and you should therefore destroy it. You must destroy it yourself too, or have it destroyed in your presence – otherwise it may still be considered valid.
