Final Duties have gathered the most commonly asked questions when it comes to Wills and combined all the answers into one post.
What is a Will?
A Will is a legal document expressing your wishes in regard to the distribution of your estate including property and other assets. It also sets out your wishes regarding your funeral arrangements and the care of children who are still minors.
Types of Wills
Single Wills – A single Will is written for an individual, it is suitable for someone who is not married or in a civil partnership amongst others.
Mirror Wills – A mirror Will is part of a set of 2 Wills that reflect each other. This is used by 2 people who have the same or similar wishes. Mirror Wills are suitable for couples that have similar wishes, you do not have to be married or in a civil partnership.
Trust Wills – A trust Will is a Will that includes provision or the setting up of a trust. Trusts can be beneficial if you do not want your estate to go directly to your beneficiaries but instead to be held in a particular way for their benefit. They are most commonly used:
- To provide for a spouse, civil partner or partner and protect their interests whilst also providing for your children.
- To protect your beneficiaries and your estate from possible future care home fees.
- When there are beneficiaries that are under the age of 18, disabled or vulnerable.
Do I need a Will?
Many people question whether or not they need a Will. The purpose of a Will is to allow the testator (the person who wrote the Will) to have control over what happens to their assets and avoid any doubt about what their intentions were. There is nothing forcing a person to have a Will but having one guarantees the provision of those you love.
If you do not have a Will, your estate is distributed according to a set of rules called the laws of intestacy. These rules might not be in line with your wishes or intentions. Writing a Will is essential for making adequate provision for those dependent upon you for their financial wellbeing.
Can I write my own Will?
You can write your own Will, but you must ensure it meets the requirement for a valid Will. However, it should be noted that unless your estate and wishes are simple you may not be able to achieve your desired outcome without professional assistance. Homemade Wills or DIY wills are more vulnerable to being challenged or rendered invalid due to ambiguity or improper execution which means your estate will be treated as if you did not have a Will at all.
How does a Will work?
A Will comes into force upon the death of the testator and provides the executors with the deceased’s instructions on how to handle their assets. For a Will to be actionable upon the death of the deceased it must be a valid UK Will. If a Will does not meet the requirements set out in the Wills Act 1837, it will be considered invalid and will not be enforceable upon death. If a will is found to be invalid the estate will be distributed according to the Rules of Intestacy.
What are the requirements to write a valid Will?
For a Will to be valid the testator must,
- be 18 or over
- make it voluntarily
- be of sound mind
- make it in writing
- sign it in the presence of 2 witnesses who are both over 18 and are not a beneficiary of the Will or related to a beneficiary of the Will
- have it signed by your 2 witnesses, in your presence
If the Will in question has not met these requirements it can be challenged but it is the court who will decide its validity. Even if a Will has met these requirements, it’s validity can still be challenged if the claimant believes,
- There is a more recently made Will that exists, and it includes a revocation clause, this clause revokes any previously made Wills.
- If the deceased married after the will and therefore it automatically makes that Will void.
- The Will is a forgery.
- The Will was made when the writer was not of sound mind.
If you believe a Will to be invalid, you have strict time limits in which to challenge it. You should seek professional legal advice as soon as possible. If you are the executor of an Estate and are unsure of the validity of a Will it can be beneficial to use a solicitor to review the Will and to mediate if the situation is causing tension between beneficiaries.
How do I make changes to my Will?
If you want to make a small change to your will you can write a codicil. A codicil is an additional document that modifies your original Will. You can use it to change, explain or revoke any part of your Will. It is signed and witnessed in the same way a Will is.
You should not alter the original Will, this could risk it being made void.
You do not need to use the same person who wrote your original Will and you do not need to use the same witnesses as you used in your original Will. However, you should not use someone as a witness if they or their husband/wife/civil partner are benefiting from the codicil, it will make the codicil invalid.
If you want to make considerable or multiple changes to your Will it would be recommended to write an entirely new Will and revoke any previous versions rather than attempt to amend your existing Will. Having multiple codicils or complicated changes can be confusing for executors and may cause problems during the administration of the estate.
When should I change my Will?
If you have gone through some major life changes, it’s important to ensure your will reflects your new circumstances. Having an out-of-date Will can cause complications with the probate application and administration process, possibly making it longer and more expensive. A Will can be changed by the testator at any time provided that the conditions to make it a valid document are met.
1) Getting Married. Getting married will invalidate any Will that was written or in place before the marriage.
2) Getting Divorced. Getting divorced or separated doesn’t make your Will invalid but you may wish to change who will benefit from it once separated, particularly if your ex-partner is written in as the sole beneficiary.
3) Having children. Ensuring children are protected and cared for is extremely important. Guardians need to be named and provisions put in place in case one or both parents pass away.
4) Buying or selling a significant asset. You can specify in your Will what you want to happen with a specific asset, if you buy a new property you may want to update your Will to direct what should happen to it. You should also update your Will if there are sections relating to assets you no longer own as these sections could be rendered invalid which can lead to a misinterpretation of your wishes or disputes.
5) An executor or beneficiary named in your Will dies. If a named executor dies you should update your Will and replace them to ensure that there will still be someone you trust administering your Estate. If a named beneficiary dies you may want to redistribute their inheritance to someone else.
Do I need an executor for a Will?
At least one executor must be appointed in the Will and it is their job to ensure the deceased’s instructions are followed. They have the responsibility to carry out their wishes in respect of funeral arrangements and to deal with the estate – its property and cash, to pay any creditors and distribute what’s left to the beneficiaries.
Can an executor change a Will?
No. An executor cannot change a Will. A Will can be changed after death using a Deed of Variation. However, a deed of variation is used upon the request of a beneficiary and can only be used if the beneficiary who will be losing out by the change
How to find out if someone left a UK Will
Given that the person named in the Will as executor is in charge of looking after the deceased affairs one of the first tasks after someone has passed away is to establish if there is a Will and where it is. If the deceased had a Will there is often a copy, if not the original, amongst their personal possessions. The copy will usually have the name of the firm or Will writing service that helped draw it up and they may hold the original if it is missing.
There are several organisations that can be approached to assist in finding a Will. The Law Society provides a search service and Certainty Wills holds a database of Wills. Many Will writing companies and estate planning organisations register their Wills with them. It should be noted that this is by no means full or comprehensive list of all UK Wills.
How long after death is a Will read?
There is no formal reading of the Will, an executor is the only person entitled to read the Will before probate has been granted. It is up to the executor’s discretion as to whether they will be sharing the contents of the Will with anyone. There are no legal requirements for when a Will is read after death, but an executor should read the Will sooner rather than later so that the administration of the estate can begin. This is especially important if the estate’s value is more than the deceased’s inheritance tax threshold as inheritance tax must be paid within 6 months of the date of death, after which it will start to incur interest.