Making a Will

A Will is a legal document that allows you to make decisions about what happens to your money, property and possessions upon your death. If you die without a Will, you die ‘intestate’ — and the people who receive your assets might not be those you’d want to.

A Will can generally be made by any person who’s over the age of 18 and of sound mind.

Someone under the age of 18 can only make a Will if they’re a soldier on active duty or a sailor at sea.

Making a Will gives you peace of mind and enables you to leave your assets to those beneficiaries who you wish to benefit. It can also provide a tax planning opportunity.

If you don’t make a Will and are domiciled in England and Wales, any assets that are held jointly will automatically pass to the survivor. 

The rules of intestacy govern who inherits assets that are held solely or as tenants in common. The order of priority is set out in Section 46 of the Administration of Estates Act 1925. The family members included in the order of intestacy include half-blood relations but not step-relations. 

As of 26 July 2023, a spouse or civil partner would inherit the first £322,000 of assets and all the deceased’s personal possessions, as well as half of the remaining estate with the rest passing to any children at 18. If there are no children, the surviving spouse or civil partner would inherit the entire estate. 

If there are no surviving members of the deceased’s family, the estate will pass to the Crown.

It’s important to note that an unmarried partner has no legal entitlement to anything under the intestacy rules. 

If you die without a Will, your estate will pass in accordance with the rules of intestacy. This means that you can’t choose your beneficiaries. Instead, your estate will pass in the strict order set out in the intestacy rules depending upon which blood relatives you have surviving.

In the event that you have no living relatives, your estate will pass to the Crown. 

The intestacy rules are set out in legislation and explain who is entitled to take out the Grant and who receives the estate if the deceased didn't leave a Will.

There’s no guarantee that all your assets will pass to your desired beneficiaries unless investigations are sought as to how you hold your property, accounts and assets. 

We can advise on the best way to ensure that your assets pass in the way that you want. 

Any assets that you hold as joint tenants with an unmarried partner (such as a bank account or a house held as joint tenants – but not tenants in common) will automatically pass to the surviving partner. However, an unmarried partner has no legal entitlement to anything under the intestacy rules. An unmarried partner who hasn’t been left any provision may have a potential claim under the Inheritance (Provision for Family and Dependents) Act 1975.

It’s advisable to use a solicitor when making a new Will. ‘Will writers’ or ‘DIY Will packs’ are available online and may appear to be more cost-effective alternatives. However, using these options can lead to additional stress, time and costs for your friends and family during the administration of your estate. 

For instance, if the Will is invalid or a clause is unclear, it may cause your gift(s) to fail and result in your gift(s) — or even your entire estate — passing via the intestacy rules. 

If your Will has been poorly drafted, there could be a need for your executor to pay to instruct a barrister to interpret the Will and ensure that the estate is correctly administered. 

Having your Will drafted by a solicitor also ensures that you can make the right decisions about your estate by properly considering your financial circumstances and having any relevant tax planning options made clear to you.

In England and Wales, you have the legal right to leave your estate to whoever you wish in your Will. You can therefore choose to exclude certain people from your Will. However, there may be people who are entitled to challenge your failure to make reasonable financial provision for them under the Inheritance (Provision for Family and Dependents) Act 1975. 

While there’s nothing you can do to prevent your Will from being challenged after your death, there are things that you can do to help limit the chances of the challenge being successful. 

Minors can be named in a Will to receive a gift. However, those under the age of 18 will be unable to receive the gift immediately. It will be held by the executors of the Will as trustees until the child reaches their 18th birthday (or a later age if the Will specifies).

Yes, you can change your Will by either making a new one or amending it via a codicil. 

Once your Will has been validly signed and witnessed, changes can’t be made by, for example, simply crossing out clauses. It’s always advisable to amend your Will officially to ensure that the changes are legally valid and take expert legal advice before doing so.

It’s advisable to review your Will every two to five years or after any major change in your life. This will ensure that your Will continues to reflect your wishes and that no changes in the law have impacted it. 

Such life changes may include having a child, moving house, marriage or divorce, separating from a partner, the death of a beneficiary or a named executor passing away or being unable to act. 

Other circumstances that could trigger a review of your Will include changes to your financial situation or family dynamics. 

To cancel your Will, the easiest option is to create a new one that states your revised wishes and includes a revocation clause to revoke the previous Will. 

Alternatively, if you wish to cancel the Will, the document must be destroyed by you or someone under your specific instruction. The document itself must be destroyed in your presence. If a Will is known to have been in your possession and can’t be found after your death, it will be presumed that you destroyed it during your lifetime, so it’s always best to store your Will with a solicitor. 

Getting married or entering into a civil partnership automatically revokes any existing Will unless it was made specifically in contemplation of the marriage or civil partnership taking place. 

The act of divorce may not revoke the entire Will but will revoke any reference to your ex-spouse or ex-civil partner — so if you have ongoing financial obligations towards your former spouse, this needs careful planning.

A codicil is a legal document that acts as a supplement to your latest Will. It either adds, removes or changes something in your current Will without you needing to make a new one. 

Codicils are often used to make simple changes to your Will, such as altering the appointed executors or adding a gift. Any significant changes would warrant making a new Will entirely.

You can choose to leave gifts of any digital assets in your Will. This works in the same way as leaving cash or specific item legacies. However, it’s important to leave instructions on how your digital assets can be accessed and maintain an up-to-date inventory (particularly where cryptocurrencies are concerned). 

Outlining how to access your digital accounts and electronic devices can be important to ensure that any sentimental digital items (such as photographs) aren’t lost simply because the executors can’t access your accounts. Not all social media platforms recognise the authority of executors, so you may need to nominate someone to take over your profile(s) after your death.

To make a valid Will, a testator — the person who makes a Will — must have mental capacity. This is tested by satisfying certain requirements.

The person making a Will must:

• understand the nature of making a Will and its effect
• understand the extent of the property that they’re disposing
• be able to comprehend and appreciate any potential claims against their assets
• not suffer from any disorder of the mind that affects their decision-making.

The level of understanding required by the test varies according to the complexity of the Will, the testator’s assets and the claims upon the testator.

An executor is an individual appointed in a Will to administer the deceased person’s estate, which comprises all their property and finances. 

The job of an executor can be onerous — particularly where large and complex estates are concerned. Appointing a professional executor (such as a solicitor) will remove this burden and in turn provide you with time to grieve and come to terms with the loss of a loved one.

Yes, an executor can also be a beneficiary in your Will. This is a common approach, particularly when leaving assets to spouses, partners or children. However, some people choose to appoint someone who has no beneficial entitlement in their Will, such as a friend, relative or professional.

If you have children who are under the age of 18, you should appoint guardians to care for their welfare in the event of your death. Any parent with parental responsibility for their child may appoint one or more individuals to be the child’s guardian(s). However, if someone with parental responsibility survives you, you can’t override their parental responsibility. 

A guardian appointment must be made in writing. While a Will isn’t the only way in which you can appoint a guardian, it’s often the most convenient. If you don’t appoint a guardian and there’s nobody else with parental responsibility, the court may appoint guardians for you. This might not be the person(s) that you would have chosen.