What is a will?

What is a will? A  will is a legal written document that lets you decide what happens to:

• your money,
• property, or
• possessions after death.

Why is a will so important especially regarding property?

In England and Wales, the importance of having a will, particularly concerning property, can be summarized through several key points:

Control over Property Distribution:

Without a will, your property and assets will be distributed according to the rules of intestacy. These rules may not align with your personal wishes or the needs of your beneficiaries. A will allows you to specify exactly who receives what, providing clear instructions on the distribution of your properties, whether they be a family home, rental properties, or holiday homes.

Protection for Unmarried Partners and Stepchildren:

The law in England and Wales does not automatically recognize cohabiting partners and stepchildren as beneficiaries under the rules of intestacy. If you wish for your partner or stepchildren to inherit your property, it is essential to mention them in your will.

Minimize Family Disputes:

Clearly stated wishes in a will can help prevent potential disputes among family members and beneficiaries. By specifying the distribution of your property, you can help ensure a smoother transition of assets and reduce the likelihood of misunderstandings or conflicts.

Efficient Estate Administration:

A will can appoint executors who you trust to manage your estate and carry out your wishes. This can streamline the estate administration process, making it easier and faster for your property and assets to be transferred to your beneficiaries.

Tax Planning:

A well-structured will can also be a tool for tax planning. It allows you to take advantage of tax allowances and exemptions, potentially reducing the inheritance tax liability on your estate. This can mean more of your property and assets are passed on to your loved ones rather than to tax.

Guardianship of Minor Children:

Although not directly related to property, a will allows you to appoint guardians for any minor children. This ensures that, in the event of your death, your children are cared for by individuals you trust, affecting their future living arrangements and the home environment.

Having a will is fundamental when it comes to property ownership in England and Wales. It provides you with control over the distribution of your assets, ensures your wishes are respected, and can offer peace of mind that your loved ones are taken care of according to your desires. Without a will, your property may not be distributed as you would have preferred, potentially leading to unnecessary stress and conflict among your survivors.

How much does a will cost?

The cost of the will varies depending on how complex the affairs are and where the firm is based. Below are a few options that you can decide:

A simple will can cost upwards of £79

A complex will may cost between £162 and £477 (e.g. if divorced and have children)

A specialist will could be in the hundreds or even thousands for services including trusts, overseas properties, or tax planning advice.

A mirror will usually costs less than doing it individually (spouse or partner want substantively the same mirror wills)

You can secure no-obligation quotes and potentially spread the cost with our expert wills and estate planning partners.

What happens if you die without a will?

Children of the intestate person will inherit if there is no surviving married or civil partner. If there is a surviving partner, they will inherit only if the estate is worth more than a certain amount.

What is the potential cost to your family of you not having a will?

The cost of writing a will prevents many people from doing so.

However, failing to make a will could end up costing you and your family significantly more.

Rectifying any disputes after your death may result in legal fees.

Litigation is frequently costly and time-consuming, and contesting a will is no exception. Costs are determined by the court.

According to data, expensive legal fees can consume up to 10% of an estate’s worth each year when there is a disagreement.

To put this into context, if your estate is valued at £200,000, your legal fees could total up to £20,000.

What are the different types of will and features of each?

Different types of wills are available in the UK.

Various types of wills cater to diverse needs and circumstances, each with its unique features and implications.

Simple Will:

A simple will is the most basic testamentary document. It outlines the distribution of assets, appoints an executor to administer the estate, and designates guardianship for minors if necessary. Its simplicity makes it suitable for individuals with straightforward estates and uncomplicated family structures.

Testamentary Trust Will:

For those seeking more intricate control over asset distribution, a testamentary trust will is an optimal choice. This will establishes trusts to manage specific assets or provide for beneficiaries over an extended period. Testamentary trusts offer tax benefits and safeguard assets from potential mismanagement or external claims.

Joint Will:

A joint will is a singular document executed by two individuals, typically spouses, outlining the distribution of their collective assets. While efficient for coordinating plans, joint wills are irrevocable once one of the testators passes away, limiting the surviving party’s ability to alter the terms.

Living Will:

Contrary to traditional wills, a living will does not pertain to the distribution of assets but focuses on healthcare decisions. It outlines an individual’s preferences for medical treatment and life-sustaining measures in the event of incapacity, ensuring that personal wishes are honoured.

Mirror Will:

Mirror wills are commonly employed by couples, especially those in second marriages, with nearly identical provisions in each will. While offering flexibility for individual bequests, mirror wills typically share the same primary beneficiaries and distribution plans.

Conditional Will:

A conditional will Introduces stipulations that must be met for the will to become valid or for certain bequests to take effect. Conditions can range from specific events to behaviours of beneficiaries.

What do I do in my will if my children are under 18 years of age?

One of the primary considerations when drafting a will with underage children involved is the appointment of a legal guardian.

A legal guardian is entrusted with the responsibility of caring for and making decisions on behalf of minors until they reach the age of majority.

When selecting a guardian, it is essential to choose someone who shares your values, is financially capable, and, crucially, is willing to assume the role.

Furthermore, establishing a testamentary trust can be a good idea.

A testamentary trust arises upon the death of the testator, the person making the will. This trust can hold and manage assets on behalf of the underage beneficiaries until they attain the age specified in the will for distribution.

Setting clear terms for the trust, including disbursement conditions and age milestones, ensures a structured and responsible management of assets.

Additionally, it is advisable to name an executor in your will.

An executor is an individual or institution responsible for administering the estate according to the terms outlined in the will. English legal terms often refer to this individual as the “personal representative.” The executor plays a crucial role in implementing the deceased’s wishes, including the distribution of assets and the establishment of trusts for underage children.

In conclusion, nominating a suitable guardian, establishing a testamentary trust, and appointing an executor are essential steps in safeguarding the welfare of your children in the event of your passing.

Consulting with legal professionals ensures that your will is not only legally sound but also aligned with your intentions for the well-being of your children.

Get in touch if you would like us to assist via our specialist partners.

What do I do about funeral wishes in my will? Are funeral wishes legally binding?

No. Under current law, funeral wishes in a will are not legally binding.

Losing a loved one is an inevitable part of life, and as individuals, we often contemplate the practical aspects of what happens after we’re gone.

One crucial consideration is expressing our funeral wishes in our will. While the sentiment behind such requests is clear, funeral wishes are not legally binding.

In English law, a will serves as a legally binding document outlining the distribution of an individual’s estate after death. However, funeral wishes, although an essential aspect of end-of-life planning, are not typically legally binding in the same manner. Courts generally do not enforce funeral instructions as strictly as they do the other provisions in a will.

It is important to understand that a will is primarily concerned with the distribution of assets and the appointment of executors, rather than the specifics of funeral arrangements.

To ensure your funeral wishes are considered, it is advisable to communicate them clearly to your loved ones and, if possible, include them in a separate document known as a “letter of wishes.”

While this document is not legally binding, it can serve as a guide for your family and friends to honour your preferences.

In some cases, individuals choose to set aside funds in their will or establish a separate funeral trust to cover the costs associated with their preferred arrangements. While these financial provisions can be legally binding, it’s crucial to ensure that the funds are accessible promptly and can be used for the intended purpose.

Moreover, it’s recommended to discuss your funeral wishes with your family and the executor of your will. Open communication can help avoid potential conflicts and ensure a smoother transition during a challenging time.

While the law might not enforce funeral wishes with the same rigor as other aspects of a will, the emotional and psychological well-being of your loved ones is equally vital.

In conclusion, funeral wishes in a will are not typically legally binding, but there are practical steps you can take to ensure your preferences are respected.

Open communication, a letter of wishes, and financial provisions can all contribute to a smoother process for your family during a difficult time.

Ultimately, while the law may not mandate the enforcement of funeral instructions, the consideration and understanding of your loved ones can go a long way in honouring your final wishes.

Once my will is drafted what do I do next? How do I register a will?

There isn’t a formal system of registering wills.

Unlike some countries where will registration is mandatory, England and Wales do not have a centralized registry for wills. Instead, the responsibility lies with the testator, or the person creating the will, to ensure its safekeeping.

Once your will is drafted, the next step is to store it in a secure and accessible location. Common choices include a solicitor’s office, a safe deposit box, or the government’s Probate Service. Informing your executor about the will’s location is equally crucial, as they will play a pivotal role in executing your wishes after your death.

While registration isn’t mandatory, there are instances where it can be beneficial

Some individuals choose to deposit their will with the Probate Service for a nominal fee. The service provides a secure repository and issues a certificate of deposit, making it easier for your loved ones to locate the document when needed.

Review and update your will

It’s essential to periodically review and update your will to reflect changes in your life, such as marriages, births, or significant asset acquisitions. Failing to do so may lead to legal complications during probate.

In conclusion, while there is no mandatory registration for wills in England, responsible and strategic planning involves storing your will securely and informing key individuals about its location.

Periodic reviews and updates ensure that your will accurately reflects your wishes and minimize the risk of legal challenges during the probate process.

Ultimately, consulting with a legal professional can provide personalized guidance based on your specific circumstances, offering peace of mind in navigating the legal landscape surrounding wills.

Where should I keep my will?

There are many places where you can keep your will safe such as the following:

• Lawyer – A professional qualified to represent someone in court or provide legal advice.
• With your Executor- someone appointed in the will as the person in charge of the estate.
• Online document storage
• Safe deposit box
• Digital Storage
• Waterproof and Fireproof safe
• Probate Court – a court qualified to handle probate and estate administration cases within its jurisdiction.
• Filing cabinet at home
• HM Courts and Tribunals Service (HMCTS) – They are a Ministry of Justice entity, and they provide administrative support to the judiciary in England and Wales.

What do I do if I want or need to change my will?

If you want to make substantial alterations to your will, you should write a new one.

The new will should begin with a clause rescinding all previous wills and codicils.

The old will should be extinguished. When a will is revoked, it is no longer legally valid.

What is the process for signing my will?

There must be two independent witnesses present at the same time and who must attest and sign the will.

It is vital for both witnesses to watch the testator sign/execute the will.

If one of the two witnesses fails to observe the signing of the will, it is considered invalid.

The process of signing a will involves several key legal considerations to guarantee its validity and enforceability.

In English law, the signing of a will follows a specific protocol to safeguard the testator’s intentions and prevent disputes

First and foremost, the testator, the person making the will, must be of sound mind, understanding the implications of their decisions. This mental capacity is fundamental to the validity of the will and helps mitigate the risk of potential challenges in the future.

Once the will is drafted, it should be executed in accordance with the Wills Act 1837. The testator must sign the will in the presence of two independent witnesses, who must also sign the document. These witnesses play a crucial role in validating the will, confirming the identity of the testator, and ensuring that they are signing the document voluntarily and without any undue influence.

It is essential that the witnesses are not beneficiaries of the will or closely related to the testator, as this could compromise the impartiality required for the legal process. The witnesses must be present at the same time and witness the testator’s signature, providing an added layer of authentication to the document.

Additionally, the testator should explicitly declare that the document they are signing is their last will and testament. This declaration is commonly known as “publication,”.

To further bolster the will’s validity, it is advisable for the testator and witnesses to use pen and ink for their signatures. This traditional practice enhances the document’s authenticity and reduces the risk of alterations or forgeries.

Can I write my own will legally?

You have the option of making your own will. However, you should only contemplate doing so if you have a strong desire to do so. It is generally recommended to engage a solicitor to verify a will you have written to ensure it has the desired impact.

Legal Validity:

It is legal for an individual, known as a testator, to write their own will without the assistance of a lawyer. Such wills, often referred to as handwritten wills, are generally recognized if they meet specific legal requirements. These requirements may include the testator’s full signature, the date of execution, and a clear expression of testamentary intent.

Formalities and Pitfalls:

While the law allows for the creation of a personal will, it is crucial to adhere to formalities to ensure legal validity. Failure to meet certain requirements may render the will void or subject to challenges. Common pitfalls include:

• incomplete information,
• ambiguous terms, or
• the omission of necessary clauses, emphasizing the importance of precision in language and content.

Professional Assistance:

Although it is legally permissible to write one’s own will, seeking professional legal assistance is highly advisable.

Estate planning solicitors possess the expertise to:

• navigate the complex legal landscape;
• anticipate potential challenges, and;
• ensure that the document aligns with the testator’s intentions.

Their guidance can be instrumental in crafting a comprehensive and legally sound will that minimizes the risk of disputes among heirs.

Updating and Reviewing:

Creating a will is not a one-time affair. Life circumstances change, and it is essential to regularly review and update the document to reflect current wishes and circumstances. Professional legal advice ensures that the will remains a reliable instrument for the distribution of assets.

In conclusion, while it is legally possible to write your own will, doing so requires careful attention to legal formalities and potential pitfalls. Seeking the assistance of a qualified estate planning solicitor ensures:

• compliance with the law
• peace of mind, knowing that your final wishes are legally secure and well-defined

What happens if a will witness dies?

Legal aspects:

The execution of a will requires the presence of witnesses who attest to the testator’s signature. According to the Wills Act 1837, at least two witnesses must be present during the signing of the will.

These witnesses play a vital role in validating the document.

Impact of Witness Death:

When a witness to a will passes away, it introduces a layer of complexity into the probate process. The primary function of witnesses is to:

• testify to the testator’s mental capacity and
• the absence of undue influence during the will’s execution.

If a witness dies, questions may arise regarding the reliability of the testamentary formalities.

Potential Consequences:

The death of a witness does not automatically invalidate the entire will.

However, it may lead to challenges during the probate proceedings. The court may need to assess whether the remaining witness(es) can provide sufficient evidence to support the validity of the will.

Additional steps might be needed, such as obtaining statements from individuals who can attest to the circumstances surrounding the will’s execution.

Substitute Witnesses:

Rather than substitute witnesses it may be better to draft a new will with new witnesses.

Wills & Estate Planning Services

if you want no-obligation quotes or any support please do not hesitate to reach out to us via the Wills & Probate page. The My Legal Club panel of cherry-picked solicitors are perfectly placed to support you and your loved ones.