Ewyllys

Why it is important to make a will

It is important for you to make a will whether or not you consider you have many possessions or much money. It is important to make a will because:

• if you die without a will, there are certain rules which dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed

• unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a will, so the death of one partner may create serious financial problems for the remaining partner

• if you have children, you will need to make a will so that arrangements for the children can be made if either one or both parents die

• it may be possible to reduce the amount of tax payable on the inheritance if advice is taken in advance and a will is made

• if your circumstances have changed, it is important that you make a will to ensure that your money and possessions are distributed according to your wishes. For example, if you have separated and your ex-partner now lives with someone else, you may want to change your will. If you are married or enter into a registered civil partnership, this will make any previous will you have made invalid

If you are in any doubt as to whether or not you should make a will, you should consult a solicitor - find out how to get legal advice.

For more information about what happens if someone dies without making a will, see Who can inherit if there is no will – the rules of intestacy.

Whether you should use a solicitor

There is no need for a will to be drawn up or witnessed by a solicitor. If you wish to make a will yourself, you can do so. However, you should only consider doing this if the will is going to be straightforward.

It is generally advisable to use a solicitor or to have a solicitor check a will you have drawn up to make sure it will have the effect you want. This is because it is easy to make mistakes and, if there are errors in the will, this can cause problems after your death. Sorting out misunderstandings and disputes after your death may result in considerable legal costs, which will reduce the amount of money in the estate.

You should remember that a solicitor will charge for their services in drawing up or checking a will. They should give you the best possible information about the cost of their services. They should give you this at the beginning of their work with you.

Some common mistakes in making a will are:

• not being aware of the formal requirements needed to make a will legally valid

• failing to take account of all the money and property available

• failing to take account of the possibility that a beneficiary may die before the person making the will

• changing the will. If these alterations are not signed and witnessed, they are invalid

• being unaware of the effect of marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a will

• being unaware of the rules which exist to enable dependants to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the will could be overturned

When it is particularly advisable to use a solicitor

There are some circumstances when it is particularly advisable to use a solicitor. These are where:

• you share a property with someone who is not your husband, wife or civil partner

• you wish to make provision for a dependant who is unable to care for themselves

• there are several family members who may make a claim on the will, for example, a second wife or children from a first marriage

• your permanent home is not in the United Kingdom

• you are resident here but there is overseas property involved

• there is a business involved

Other help with writing a will

If you are a member of a trade union, you may find that the union offers a free will writing service. A union will often use its own solicitors to undertake this work.

There are books which provide guidance on how to draw up a will. These can help you decide if you should draw up your own will and also help you decide if any of the pre-printed will forms available from stationers and charities are suitable. It is also possible to find help on the internet.

Will-writing services are available. However, will-writing firms are not regulated by the Law Society so there are few safeguards if things go wrong.

If you decide to use a will-writing firm, consider using one that belongs to The Institute of Professional Willwriters which has a code of practice approved by the Trading Standards Institute Consumer Codes Approval Scheme (CCAS).

Traders in this scheme display the TSI approved code logo.

When you see the logo, it means that the trader has agreed to provide good standards of service including clear information before a contract is signed, a clear complaints procedure and access to alternative dispute resolution (ADR) scheme for settling out of court.

You can search for a will-writing firm belonging to The Institute of Professional Willwriters on their website.

How much does a solicitor cost

The charges for drawing up a will vary between solicitors and also depend on the complexity of the will.

Before making a decision on who to use, it's always advisable to check with a few local solicitors to find out how much they charge.

You might have access to legal advice through an addition to an insurance policy that covers the costs of a solicitor preparing or checking a will. If you're a member of a trade union you might find that the union offers a free wills service to members.

The charity Will Aid has set up a partnership between certain solicitors and nine well-known charities.

Every November, participating solicitors will write a basic will free of charge in return for a donation to Will Aid.

You can find out about the suggested minimum donation amount, and details of solicitors who can help on the Will Aid website. 

It's also worth you giving some thought to what you want to say in the will before seeing a solicitor. This should help reduce the costs involved.

What should be included in a will

To save time and reduce costs when going to a solicitor, you should give some thought to the major points which you want included in your will. You should consider such things as:

• how much money and what property and possessions you have, for example, property, savings, occupational and personal pensions, insurance policies, bank and building society accounts, shares

• who you want to benefit from your will. You should make a list of all the people to whom you wish to leave money or possessions. These people are known as beneficiaries. You also need to consider whether you wish to leave any money to charity

• who should look after any children under 18

• who is going to sort out the estate and carry out your wishes as set out in the will. These people are known as the executors

Who are executors

Executors are the people who will be responsible for carrying out your wishes and for sorting out the estate.

They will have to collect together all the assets of the estate, deal with all the paperwork and pay all the debts, taxes, funeral and administration costs out of money in the estate.

They will need to pay out the gifts and transfer any property to beneficiaries.

Who to choose as executors

It is not necessary to appoint more than 1 executor although it is advisable to do so - for example, in case one of them dies.

It is common to appoint 2, but up to 4 executors can take on responsibility for administering the will after a death.

The people most commonly appointed as executors are:

• relatives or friends

• solicitors or accountants

• banks

• the Public Trustee or in some cases the Official Solicitor if there is no one else willing and able to act

It is important to choose executors with considerable care since their job involves a great deal of work and responsibility.

You should always approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility. If someone is appointed who is not willing to be an executor, they have a right to refuse.

If an executor dies, any other surviving executor(s) can deal with the estate. If there are no surviving executors, legal advice should be sought.

For more information about what executors have to do, see Dealing with the financial affairs of someone who has died.

Requirements for a valid will

In order for a will to be valid, it must be:

• made by a person who is 18 years old or over and

• made voluntarily and without pressure from any other person and

• made by a person who is of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identify of the people who may inherit and

• in writing and

• signed by the person making the will in the presence of two witnesses and

• signed by the two witnesses, in the presence of the person making the will, after it has been signed.

A witness or the married partner of a witness cannot benefit from a will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the will is still valid but the beneficiary will not be able to inherit under the will.

Although it will be legally valid even if it is not dated, it is advisable to ensure that the will also includes the date on which it is signed.

As soon as the will is signed and witnessed, it is complete.

If someone makes a will but it is not legally valid, on their death their estate will be shared out under certain rules, not according to the wishes expressed in the will.

For more information about the rules if someone dies without leaving a valid will, see Who can inherit if there is no will – the rules of intestacy.

Wills of service personnel on active service

The requirements for a valid will are less stringent for service personnel on active service. Such wills are known as privileged wills.

If you need further help about privileged wills, you can contact your nearest Citizens Advice Bureau or seek legal advice.

Where to keep a will

Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep a will:-

• at home

• with a solicitor or accountant

• at a bank

• at the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry for safe keeping. If you wish to deposit a will in this way you should visit the District Registry or Probate Sub-Registry or write to:

Looking for copies of a will after someone dies

Someone close to you may have died and you think they made a will but you can't find one in their home.

Check to see if you can find a certificate of deposit, which will have been sent to them if they arranged for the will to be kept by the Principal Registry of the Family Division.

Even if you can't find a certificate of deposit, you can still check with the Registry to see if they hold the will. If the person died in a care home or a hospital you could check to see if the will was left with them.

You should also contact the person's solicitor, accountant or bank to see if they hold the will.

The person who has died, or their solicitor, may have registered their will with a commercial organisation such as Certainty (www.certainty.co.uk) and, after the person's death, you can pay for a search of the wills registered on the company's database.

You can also ask the company to contact solicitors in the area where the person lived to ask if they hold a will.

If you can't find a will, you will usually have to deal with the estate of the person who has died as if they died without leaving a will.

For more information, see Who can inherit if there is no will – the rules of intestacy.

Getting a copy of the will when probate has been granted

When someone dies, the person who is dealing with their estate (for example, money and property) must usually get authorisation to do so from the Probate Service.

If there is a will, this authorisation is called a grant of probate.

When probate is granted, the will is kept by the Probate Service and any member of the public can get a copy.

If you want to search for the will of a person who died recently, you can apply to the Probate Service for a standing search to be made.

They will check their records to see if a grant of probate has been made in the twelve months before your application, and they will continue to check for six months afterwards.

If a grant has been made, they will send you a copy of the grant and a copy of the will, if any. A fee is payable.

You can renew your search at the end of 6 months for a further fee. It may  be advisable to wait 2 or 3 months after the death before you apply for a search.

You can find out how to apply for a standing search and how much it costs on GOV.UK.

If you want to do your own search, or if you want to search for the will of someone who died more than twelve months ago, you can do a general search.

A general search by the Probate Registry will cover a four year period and a fee is payable. If you go to the Probate Registry to do the search yourself, no charge is made, but you still have to pay to get a copy of the grant of probate and the will, if any.

You can find out how to apply for a general search and how much it costs on GOV.UK.

Personal application

You can make a personal search free of charge by going to the Principal Registry of the Family Division (see under heading Where to keep a will). If you want to inspect or take a copy of the will, there is a fee of £5.

Local application

You can order a copy of a will or grant of probate at any district probate registry.

You will need to give the full name of the person who died, the date probate was granted and the name of the registry office where it was issued. The fee is £5.

To find a district probate registry, search on GOV.UK at https://courttribunalfinder.service.gov.uk/search/postcode.

Change of circumstances

When a will has been made, it is important to keep it up to date to take account of changes in circumstances.

It is advisable for you to reconsider the contents of a will regularly to make sure that it still reflects your wishes. The most common changes of circumstances which affect a will are:

• getting married, remarried or registering a civil partnership

• getting divorced, dissolving a civil partnership or separating

• the birth or adoption of children, if you wish to add these as beneficiaries in a will

How to change a will

You may want to change your will because there has been a change of circumstances.

You must not do this by amending the original will after it has been signed and witnessed.

Any obvious alterations on the face of the will are assumed to have been made at a later date and so do not form part of the original legally valid will.

The only way you can change a will is by making:

• a codicil to the will or

• a new will

Codicils

A codicil is a supplement to a will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a will, or to add beneficiaries.

A codicil must be signed by the person who made the will and be witnessed in the same way. However, the witnesses do not have to be the same as for the original will.

There is no limit on how many codicils can be added to a will, but they are only suitable for very straightforward changes. If a complicated change is involved, it is usually advisable to make a new will.

Making a will

If you wish to make major changes to a will, it is advisable to make a new one.

The new will should begin with a clause stating that it revokes all previous wills and codicils. The old will should be destroyed. Revoking a will means that the will is no longer legally valid.

Destroying a will

If you want to destroy a will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked.

There is a risk that if a copy subsequently reappears (or bits of the will are reassembled), it might be thought that the destruction was accidental.

You must destroy the will yourself or it must be destroyed in your presence.

A simple instruction alone to an executor to destroy a will has no effect. If the will is destroyed accidentally, it is not revoked and can still be declared valid.

Although a will can be revoked by destruction, it is always advisable that a new will should contain a clause revoking all previous wills and codicils.

Revoking a will means that the will is no longer legally valid.

If a person who made a will takes their own life

If a person who made a will takes their own life, the will is still valid.

Challenging a will

A person may want to challenge a will because:

• they believe that the will is invalid or

• they believe that they have not been adequately provided for in the will

There are strict time limits for challenging a will and if you want to challenge a will, you should seek legal advice as soon as possible.

If you want to challenge the will because you believe you haven't been adequately provided for, the time limit is 6 months from the grant of probate. Your local Citizens Advice can give you lists of solicitors. You can search for your nearest Citizens Advice.

Probate

If you are named in someone else's will as an executor, you may have to apply for probate so that you can deal with their estate.

For more information about probate, see Dealing with the financial affairs of someone who has died.