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One of the most important documents that a person leaves behind when they die can be their Will. Yet more than half of British adults have not made a Will. Not formalising your intentions can leave considerable costs and complications for loved ones left behind to deal with, together with the heartache of grieving.
What is a Will?
Your last Will and Testament is a legal, written document that specifies where, and to whom, you wish your money, property and possessions, known as your “estate”, to be distributed in the event of your death.
Making a Will is one of those things that many people put off doing. Some of the reasons that people give for not making a Will include:
- I haven’t got anything worth leaving.
- I don’t want to think about dying.
- It’s too expensive.
- My partner will get everything anyway.
- I’ll do it when I have more time.
- I don’t know where to start.
Legal and General Insurance commissioned a survey to uncover how COVID-19 has changed the way we think about Wills. They discovered that:
- Overall, there are more people who don’t have a Will (53%) than those who do (47%).
- There was a gender divide – among men, 53% have a Will compared to 47% who don’t, whereas 41% of women have a Will, and 59% don’t.
- 39% of people aged 25 to 34 have a Will, compared to 61% who don’t. This remains lower than average across all age groups.
- 64% of people in Northern Ireland do not have a Will in place, higher than any other UK region.
- More than a fifth (22%) of respondents aged 16–24 strongly agreed that their perspective had changed on Will writing since the pandemic. This was the highest percentage of any age group.
- Of those who have updated their Will, 18% of young people (aged 16–24) said they did so after falling ill from COVID-19.
- 15% of respondents in the 16–24 age group who’ve made a Will have left assets to their pets, the highest of any age category.
They also asked “If you do not have a Will, what would make you more likely to write one?” respondents replied:
- If I came into money – 35%.
- Falling ill – 35%.
- Advancing age – 31%.
- If I had children – 21%.
- Nothing would make me more likely to write a Will – 17%.
- Loss of a loved one – 14%.
- Getting married – 11%.
- Change in a relationship – 9%.
- A pandemic (COVID-19 or other unexpected events) – 8%.
- Career change – 3%.
- Other – 1%.
It is clear that the COVID pandemic has made us reflect on our mortality more than ever. Before, a Will may have seemed like something to sort out when you are old and grey; now suddenly people of all ages are more open to sorting out their Will.
What is the purpose of a Will?
In England or Wales, when an adult dies their assets such as their property, money, financial affairs and possessions must either be liquidated (sold) or transferred, their debts settled, and what is left paid to their beneficiaries. This process is known as administering the estate, or probate.
The main purpose of having a Will is for you to set out how you want your estate – that is, your money, property and possessions – to be divided up when you die. Your Will ensures that your estate goes to the people you want it to and, of equal importance, that your estate doesn’t go to people who you don’t want to benefit.
Your Will legally empowers the person(s) that you have appointed to administer your Will – that is, your executor(s) – to carry out your wishes after your death and to ensure that your estate is properly wound up. Once the process of probate and estate administration has taken place, your estate will be distributed by your executor(s) under the terms that you have set out in your Will.
Why should you write a Will?
In the event of your death, by having a Will as well as specifying who your beneficiaries will be, and what you want them to inherit, you can also legally specify a number of other provisions.
You are able to set out:
- Who your executor(s) will be – Your executor(s) is your personal representative who is legally responsible for your assets from the date of your death until the date everything has been passed on to your beneficiaries. In your Will you are able to appoint an executor(s) of your choice, and you can appoint up to four executors. It is a good idea to choose at least two executors, so they can share the responsibilities and just in case one of them dies before you do.
- Who should look after your dependants – If you have children under 18 years, you can appoint their legal guardian(s). This guardian can also be appointed to manage any inheritance your children may receive until they reach their age of majority, usually 18 years. If you do not specify a legal guardian(s) in your Will, the decision could be left to the family courts, who may choose a person you would not agree with.
- Where your dependants might live – Such as if the guardians that you appoint have children of their own, who’s house would they all live in, theirs or yours? If the guardians live in a different part of the UK, would your child(ren) need to relocate?
- How your children under the age of 18 years are provided for financially – You can set out your plans to provide for their future financially. This might include putting money aside for their education, making sure they receive a set amount each year for clothing or hobbies etc.
- How any stepchildren, foster children, or any other dependants who may rely on you for support are provided for financially – The law states that only spouses or blood relatives can automatically inherit if there is no Will, so any financial provision for other dependants needs to specified in a Will.
- Who will inherit specific possessions – You may want particular items to go to certain people, such as you may want family heirlooms, valuable or not, to remain within the family rather than being liquidated (sold off) when your estate is administered.
- The age that any grown-up children will receive their inheritance – it may be that you want them to inherit at age 21 or 25 years rather than age 18 years, or perhaps you would prefer that they had a share of their inheritance at age 18 years and receive the remainder at a later date.
- What will happen to any pets that you own – Although in the UK it is impossible to leave money to your pet, you may want to leave a sum of money to someone for them to be taken care of.
- What should happen to your digital assets – Such as social media, email and other online accounts.
- What gifts, if any, that you want to make to charity – Including details of these legally ensures that the gift will be made.
- Details of the funeral you want – Such as whether you wish to be buried or cremated and any ceremony-based requests you may want to be carried out. It is important to note that these wishes are not legally binding and often funeral arrangements may begin before a Will is read or found, so it is incredibly important to share your wishes with family members beforehand.
You can also use your Will to disinherit any individual that you do not wish to benefit from your death, but you must include a clear condition as to why they should not inherit.
It is essential that you have a valid Will in place prior to your death, in order to ensure that all your wishes are met.
Do you need legal advice when creating a Will?
Legal advice is not a requirement for a Will’s validity. For a Will to be valid in the UK, that is, legal and binding:
- It must be in writing, signed by you, and witnessed by two people.
- You must have made the Will voluntarily and without pressure from anyone.
- You must have the mental capacity to make the Will and understand the effect that the Will may have.
If your Will is quite straightforward perhaps with a small, uncomplicated estate and few beneficiaries, you may choose not to take legal advice before writing it, and may choose a Will writing service or Will kit. However, unlike many other areas of financial services, Will writing is not a regulated market. This means that the protections that you have if something goes wrong can vary greatly. Solicitors and Notaries are regulated professionals, so if you use them you are covered by a range of potentially important protections if something goes wrong.
You should seek legal advice from a professional if your Will is not straightforward, such as, but not limited to:
- Sharing a property with someone that you are not married to or in a civil partnership with.
- Intending to leave money or property to a dependant who cannot care for themselves.
- You want to include a Trust.
- There are family members who you have not included, but who may try to make a claim on your Will.
- You live permanently outside the UK.
- You own overseas property.
- You own a business.
Making a Will without using a solicitor can result in mistakes or something in your Will not being clear. Your executor will have to sort out any mistakes and they might have to pay legal costs to rectify it. This will reduce the amount of money in your estate and mistakes in your Will could even make it invalid.
If the cost of writing a Will with advice from a solicitor is the reason deterring you from doing so, many charities offer fee-free Will writing by solicitors. In return, they hope that you will either make a voluntary donation or leave a bequest to them in your Will, although you are not obliged to do so. In addition, many trade unions also offer fee-free Will writing by solicitors to their members.
Charities and trade unions offering this service include, but are not limited to:
When should you get a Will created?
Anyone over the age of 18 years in the UK can make a Will; however, exceptions to the minimum age are made for anyone on active military service. The average age people make a Will in the UK is 58 years.
For most people though, creating a Will is often dictated, not by age, but by events in their lives. Events, such as buying property, marriage and having children prompt many people into making a Will as an important step in ensuring that loved ones are provided for should anything happen to them.
It is especially important to have a Will in place when:
- You become financially independent from your parents.
- You own a property either solely, jointly or as tenants in common.
- You start a business.
- You get married or enter a civil partnership.
- You are having or adopting children.
- You are getting divorced or separating from your partner.
- You are re-marrying.
- You are suffering from a terminal illness or an illness that might affect your capacity in the future.
There are also life events that will make any Will that you have written invalid, and will require you to create a new Will such as:
- Marriage – If you marry after making a Will, the Will automatically revokes unless you have specifically made clear in the Will that it was written in anticipation of the marriage.
- Dependant left out of will – If you leave someone who is deemed dependent on you out of your Will without a clause specifically stating this, then this could be open to challenge by them or their family.
- Death of a beneficiary – Where a beneficiary has passed away since the Will was made, in the absence of any updated Will, the bequest may be invalidated. Whilst this would not necessarily make the whole Will invalid, it could leave parts or all of it open to question.
Once you have made a Will, it makes sense to review your Will on a regular basis to ensure that it is not deemed invalid and/or to reflect any changes you may need or want to make to its contents. You cannot amend your Will after it has been signed and witnessed. The only way you can change a Will is by making an official alteration called a codicil. You must sign a codicil and get it witnessed in the same way as witnessing a Will. There is no limit to how many codicils you can add to a Will, and it is useful to take legal advice if making a codicil to ensure you do not make the Will invalid.
For any major changes, you should make a new Will and your new Will should explain that it revokes, that is officially cancels, all previous Wills and codicils. You should then destroy your old Will.
What are the different types of Wills?
As people, their families and their estates vary considerably, from households with little in the way of assets, to large estates made up of property, heirlooms, investments and business interests, there is a range of different Wills available to suit different purposes.
The most common and familiar type of Will is the Single Will. It is a simple document that outlines what any individual person wishes to happen with their estate when they die.
Single Wills are most often used by:
- People who are not in a relationship.
- Partners who have different wishes.
- People whose spouse or partner already has a Will.
- People who are married, but have children from a previous relationship.
If a couple has the same wishes regarding the distribution of their assets then Mirror Wills, sometimes also called Joint Wills, are usually used. These are two separate legal documents, one for each person; however, the contents of each will mirror the other one, except for the name of the person and perhaps their individual funeral wishes. Mirror Wills are commonly used by married and unmarried couples who have very similar wishes.
A couple with children might write into their Mirror Wills that each person leaves everything to the other, and whoever dies last leaves everything to the children in equal shares. However, if you are making a Mirror Will, it is important to consider and plan for all potential scenarios, including what should happen if you both die together.
Mirror Wills rely on high levels of trust between two people because it is perfectly possible for the surviving partner to change their Will after the death of their partner. This may be problematic if there are children from previous relationships or a Will has been changed to benefit a new partner.
You may have heard of the term “Living Will”. Unlike your Last Will and Testament which is only actionable upon your death, a Living Will, which is also called an “advance decision”, allows you to specify any particular wishes you may have regarding end-of-life care. It lets your family, carers and health professionals know your wishes about refusing treatment if you are unable to make or communicate those decisions yourself. The treatments you are deciding to refuse must all be named in the advance decision, and deciding to refuse a treatment is not the same as asking someone to end your life or help you end your life.
A Living Will differs from a Lasting Power of Attorney in as much as you are specifying your decisions rather than empowering someone else to make the decisions for you. You can make the Living Will / advance decision, as long as you have the mental capacity to make such decisions, and your advance decision needs to be:
- Written down.
- Signed by you.
- Signed by a valid witness.
Some Living Wills also require the additional signature of a Notary. The charity Compassion in Dying has an advance decision form you can fill in online or by hand, with suggestions for things to think about.
What is the difference between a Will and a Trust?
A Will is about the distribution of assets after your death, whereas a Trust is about the control of your assets and money either during your lifetime or after your death. A Trust can be created either in a Will or during your lifetime. If it is in a Will, it will only become operative at the time the administration of the estate is complete. If it is in a lifetime document, it can take effect immediately.
Similar to Wills, there is a range of different Trusts available to suit different purposes and sometimes these are referred to as Trust Wills when set up as part of a Will.
A Discretionary Trust can be used to leave part or all of your estate to a trust that is created in the Will. In the trust, you can name the trustees who will manage the trust and who the trust’s beneficiaries will be. The trustees will have complete control over how and when any beneficiaries receive the contents of the trust. They are usually used to ensure that young children or beneficiaries incapable of managing their finances are provided with funds. Creditors cannot access the fund which makes them a useful option for providing for anyone who is in debt or who may be bankrupt.
A Discretionary Trust will guarantee that vulnerable people are given assistance in the management of their inheritance, reduce the risk of state benefit entitlements being compromised by the receipt of an inheritance and can potentially help unmarried couples with Inheritance Tax planning.
Property Trusts allow for someone to benefit from the property while preserving all or part of it for another beneficiary. This might be because you would like to pass on your property to your children while ensuring that your partner can remain in the property until they move, remarry, or die.
A Property Trust could be a good solution for anyone who owns property with someone else and wants to protect the property value for specific loved ones in the future or wants to protect the property value from the risk of residential care fees, if the surviving spouse or civil partner needs care in the future.
A Flexible Life Interest Trust is similar to a Property Trust. It protects assets while allowing a beneficiary to receive income from the trust. A surviving partner can access funds for their ongoing needs for the rest of their life. At their death, the assets then pass to other beneficiaries; in most cases, this is the children. A flexible life interest trust guarantees who benefits from cash assets and investments as well as property if your surviving spouse or civil partner remarries after your death or writes a new Will after your death, changing their original wishes.
What steps are there in creating a Will?
The first step in creating a Will is to value your estate. Draw up a list of all your assets and any debts. Your assets might include such things as:
- Any property you own such as your home.
- Money in bank and/or building society accounts.
- Premium bonds.
- Any insurance policies such as life assurance, mortgage protection etc.
- Any pension funds that include a lump sum payment on death.
- Any investments such as stocks and shares or investment trusts.
- Vehicles such as your car.
- Personal belongings such as jewellery, antiques and other valuables.
- Furniture and other household contents owned outright.
It is advisable to get your assets valued on a regular basis as their values may change.
Your debts will include such things as:
- Equity release.
- Credit card balance(s).
- Bank overdraft(s).
Once you have compiled your list, the next step is to decide how you want to divide up your estate. You need to make sure that it is absolutely clear what you want to happen to your whole estate, not just the financial assets.
You should make a list of:
- Who you want to benefit from your Will.
- Whether you want to give any specific bequests to certain people.
- Where the residue of the estate is to go – this is any property or money left over after paying funeral and administrative expenses, bequests and taxes.
- What you want to happen if any of your beneficiaries should die before you, although if you review your Will on a regular basis you should have made codicils.
Then you should choose your executors. Executors are responsible for the task of distributing your estate. The role of an executor involves a lot of duties and responsibilities, so it is important that you pick people you know well and trust and, just as important, ask them to agree to be an executor, as some people may not want to take on the responsibilities. You can ask your solicitor to be your executor if you would prefer. You can choose to have more than one executor or just have the one. Being an executor does not preclude that person from inheriting, as an executor can also be a beneficiary to your Will.
Once you have all this information, you can start to write your Will. As detailed above, you can choose to use a solicitor to write your Will or use one of the solicitor-assisted options. As soon as your Will is written, to be valid it must be signed in the presence of independent witnesses. Due to the COVID pandemic, some changes have been made to the rules for witnessing Wills.
The final step is to decide where to keep your Will. If anything happens to your Will or if your executor doesn’t know where to find it, you might as well not have written one and you may be classified as having died intestate.
If a solicitor writes your Will, they will usually store the original free of charge and give you a copy, but check with them to make sure. Most solicitors will also store a Will they didn’t write, but there will probably be a fee.
You can keep your Will with your other personal documents, but just make sure that your executor knows where it is kept.
For a fee, the Probate Service will store your Will for you. You have to lodge it with them officially, and make official requests to take it out again.
Never keep your Will in a bank safety deposit box, as the bank cannot open a deposit box until the executor gets probate and probate cannot be granted without the Will.
Wherever you decide to store your Will, always make sure that it can be accessed by your executor without probate and that they know where you have stored it.
What is included in a Will?
Most Wills in the UK follow a set format:
- The first thing that you must include in your Will is a declaration that you, the Testator, revoke all other Wills. It is useful to include this statement even if this is your first Will.
- You then provide details of who your executor(s) are.
- Then detail the appointment of any guardians and/or Trustees if applicable.
- Next detail specific gifts of money or possessions. These are termed legacies and bequests, and you can make specific gifts to your residuary beneficiaries too.
- Then detail the residuary estate all to one or more people or to the executor(s) on trust. If the executors take it, they change hats to become trustees unless you specify otherwise.
- Next, detail any trust provisions, and what the trustees may or may not do with your money in managing your estate. You can be as restrictive or as open as you wish.
- Then any other instructions such as your funeral arrangements, providing for any pets, or any charitable donations if not specified above.
- Finally, your signature, the date and the signatures of two witnesses.
Making a Will if you lack capacity or have dementia
In legal terms, a person making a Will, the testator, should have “testamentary capacity”, that is, the capacity to specifically make a will. The test for testamentary capacity was established in the case of Banks v Goodfellow (1870) and includes having an understanding of the following:
- “The nature and effect of making a will
- The extent of their estate
- The claims of those who might expect to benefit from the testator’s will (both those included in the will and those excluded)
- The testator should not have a mental illness or a disorder of mind that shall poison their affections and influence them into making bequests they would not otherwise have made, if their mind had been sound”.
If a person lacks testamentary capacity, legally they will not be in a position to make a Will. However, this does not necessarily mean that they have no option but to subject their estate to the rules of intestacy. It may be appropriate, in some circumstances, to ask the Court of Protection for permission to make a Will on behalf of the person who has lost capacity. This type of Will is called a Statutory Will and the Court of Protection has the power, under Section 18(1) of the Mental Capacity Act 2005, to authorise this. A Statutory Will is every bit as effective as if the person had full mental capacity and made the Will themselves.
It is usually an Attorney under a Lasting Power of Attorney (LPA) who would make a submission to the Court of Protection to have a Statutory Will drawn up and approved. If the testator didn’t make an LPA before they lost capacity, a Deputy is usually appointed by the Court to make decisions on the testator’s behalf. This may be a friend, a family member or a professional such as a solicitor.
The Court has the final say as to what the Will should say and everyone must abide by that decision.
However, they do consider:
- The testator’s past and present wishes and feelings, in particular, any relevant document made by the person when they had full mental capacity.
- The testator’s best interests.
- The testator’s own views – they are encouraged to contribute to the decision-making process, at whatever level of ability they may have.
- Views of relevant third parties as to the testator’s best interests.
Once the Will is approved by the Court, an order is then made allowing the applicant to sign the Will on behalf of the person lacking capacity. The Will is then sealed with the official Seal of the Court of Protection. This makes the Will a legally valid and binding document.
If you have an LPA and had previously made a Will, your Attorney can change an existing Will, but only if you are not of sound mind and are incapable of doing it yourself.
To do this, it must be proved that you no longer understand:
- What changing or making a Will means.
- How much your estate is worth or what you own.
- How the changes affect beneficiaries.
As ever, these changes should be made in your best interest and it is useful to take a solicitor’s advice.
What happens if you don’t have a Will?
When someone dies without having made a valid Will, this is known as dying intestate. An intestate estate is governed by the Administration of Estates Act 1925, and the Inheritance and Trustees’ Powers Act 2014. This updated legislation aims to simplify the sharing of assets when someone dies without a Will and to recognise some more modern family structures.
If you have not made a valid Will, your estate will be shared out according to the rules of intestacy. Also, if someone makes a Will but for some reason it is deemed not legally valid, the rules of intestacy will decide how the estate will be shared out and not the wishes expressed in the invalid Will.
Under the rules of intestacy, only married partners, civil partners and certain close relatives can inherit your estate. The rules will allocate your estate to your family members in a strict order, depending on which relatives you leave behind. Usually, your spouse or civil partner will inherit the bulk of your estate, though unmarried partners will not inherit anything, neither will divorced partners or those from dissolved civil partnerships.
The rules of intestacy are designed to protect your family in a situation where there is no valid Will.
However, there are several potential problems:
- If you are separated from your spouse or civil partner but not legally divorced, they will inherit some or all of your estate under the intestacy rules.
- Children inherit equally under the intestacy laws regardless of their needs. The rules of intestacy state that all children will receive their inheritance outright at the age of 18 years, whatever their financial position or their levels of maturity.
- Your children are only those related to you by blood or legally adopted by you, and this does not include any stepchildren that you may have.
- Your assets may have to be liquidated in order that your estate can be split among your heirs, so this could mean that your spouse and/or children might have to move out of the home that you live in.
- If you have no immediate family, distant relatives that you may have never met would possibly inherit from you, rather than loved ones and friends who are no relation to you.
- If you have no living relatives, HM Treasury will be responsible for dealing with the estate and everything you leave will go to the Crown.
It is never too late to take steps to create a Will. Without a Will in place, a judge will decide how your estate is divided and your assets may not end up going where you want them to, or even to where you expect. Just as important as writing the Will is ensuring that it is valid and “watertight”, so don’t be put off getting legal advice. Remember Free Wills Month and Will Aid, if cost is all that is stopping you from making a Will.