Last will and testament UK
15 July 2020
What is covered by a last will and testament?
A last will and testament records your wishes regarding who should receive money and belongings from your estate after your death. It also notes who will act on your behalf for administering the will, known as executors, and can include details of who will take care of any dependents such as young children.
Why should I have a last will and testament?
If you don’t have a valid will, you have lost the opportunity to choose who will receive money or other assets from you. The term “intestate” is used to refer to the situation when someone dies without writing a will. It means that the rules of intestacy have to be applied and legally your estate must be distributed in accordance with these laws. This can mean that loved ones to whom you intended to leave money or property actually end up with nothing.
A will is particularly important for people who are in a relationship but are not married or in a civil partnership. If there is no will, a person may find they receive nothing from the estate of their partner. If you are co-habiting partners and the property is in one name only, the partner who does not own the property could end up homeless if they outlive the property owner. Simply drawing up a lasting will and testament will ensure that such a risk is avoided.
When should I write a will?
Many people put off preparing a will, thinking that it is not yet relevant to them and something to do in later life. In fact, you should look into having a will written as soon as you own significant assets such as property or sizeable investments, or when you have started a family.
How can I ensure my children are taken care of?
A last will and testament can include details of your nominated guardians – people who have agreed to take care of your children if the worst should happen to you while your children are still below the age of 18. Providing there is no-one else with parental responsibility for your children, the appointed guardians will take on this role, looking after them and making decisions relating to their welfare and upbringing, education etc.
It is important to appoint at least one guardian for your children. This gives you the peace of mind of knowing that your children will be taken care of by the person of your choice in the event that you are no longer able to do so. Ideally, you should appoint more than one guardian to share the responsibility.
Can I make instructions for who will receive particular items in my will?
Yes. It is up to you to decide how much detail you want to go into. Any item or asset can be allocated to a particular recipient. For example, you might wish to leave your house to one recipient and your savings to another. You can also specify particular amounts of money to be given to named individuals. Other items, such as pieces of art or jewellery, often have some sentimental value attached, and you may wish to choose recipients for whom these pieces also have some special meaning.
How do I leave money to charity in my will?
A charity can be named, just as any other beneficiary is named, in your will. You can allocate a fixed amount to be left to your chosen charity or you can leave a specified percentage of the total value of your assets, on indeed your whole estate should you wish to do so.
What does ‘the remainder of the estate’ refer to?
If you have given instructions for distributing specific gifts or belongings, these will be followed. Taxes, expenses and any debts must also be paid. The remainder of the estate is the value of the property, savings etc which remain after the other amounts have been distributed.
What does an Executor do?
Your executor has legal and financial responsibility for administering your estate, in accordance with your will. You may appoint more than one executor, and this is generally advisable. It means that the responsibility can be shared, and if one executor is unable to assist due to unforeseen circumstances, there will still be another person with the authority to act on your behalf. You can nominate as many as four executors.
Who can be an Executor?
An executor must be at least 18 years old. It can be someone who is a beneficiary, indeed this is often the case as many people choose their spouse, a sibling, grown-up children or a friend, to be their executor.
If your family or friends are not willing or able to take on the role of executor, you can choose a professional executor instead. This is also an option to consider if your financial or family circumstances are particularly complex. A professional executor is usually a solicitor, accountant or financial adviser. If you choose a professional executor they will charge for their time in helping to deal with probate and the distribution of your estate.
Do I need a solicitor for my will to be legally binding?
You can write your own last will and testament without involving a solicitor; however, this is not recommended as home-made wills are easier to challenge and overturn if someone disputes their contents. In addition your will may involve complexities which can be very hard to manage without the guidance of an experienced solicitor. Examples of complexities can include the need to provide for children from a previous marriage, as well as your current partner and any shared or step children.
Whether you write your will with the support of a solicitor or on your own, there are certain conditions which must be met:
- You must be over 18 years of age at the time of writing the will
- You must be of sound mind at the time of writing the will
- Your will must be signed by you in the presence of two witnesses, who must also sign
What is the difference between an executor and a witness?
An executor can be a beneficiary, whereas a witness must not be a beneficiary of your will. The only involvement of the witness is to verify the signature on the will.
How can I make changes to my will?
If your circumstances change and you want to make adjustments to your will, you can easily do so with the help of your solicitor. For example, if you have gone through a divorce or if you have inherited a significant amount and wish to change the way your assets are shared or add new beneficiaries.
It is important to note that if you get divorced, any will you made while married remains valid until you update it. If you had named the ex-spouse as an executor, this would no longer be valid. Other aspects of the will would remain unchanged, even though this might no longer reflect your wishes. Updating your will should, therefore, be a priority following a divorce or separation.
If you are going through a relationship breakdown and you expect it to be a protracted process, it is worth considering making a new will adapted to your new circumstances during the separation period, prior to divorce. Decisions made while you were married, such as appointing your spouse as your executor, may no longer be appropriate for you. However, these decisions will still stand until your divorce is complete unless you change your will.
What is a codicil used for?
In some cases, straightforward changes can be made without the need for rewriting your will. These can be made via an amendment or codicil, which is added to your will. A codicil can usually be used if you just want to make simple updates, such as adding an executor or altering the percentages which are given to your beneficiaries.
A codicil needs to be signed and witnessed in the same way as your last will and testament or it will not be valid. Importantly, it must be stored with your will or there is a risk that it will not be known about or could get lost, in which case your will document would stand, minus the amendments.
Should I make or change my will before I get married?
If you make a standard last will and testament before you are married, that document will automatically be revoked when you enter into a marriage or civil partnership. The exception to this is if you make a will “in contemplation” of getting married. This is a good idea if you are keen to have a will in place to make sure that your wishes are clear and your loved ones are protected financially. If you write a will “in contemplation” of getting married, it cannot be in general anticipation of marriage or a civil partnership. There must be an expectation of marrying a specific person within a reasonable timeframe.
What else can I include in my will?
You can use your will to document your wishes for your funeral arrangements. For example, you can note whether you want a burial or cremation. Preferences recorded for funeral arrangements are not legally binding, but will usually be adhered to. Family members may make recommendations for the funeral, but ultimately the responsibility for deciding on arrangements lies with the executors.
If you are a pet owner, you may wish to record in your last will and testament the details of who has agreed to look after your animal(s) should the worst happen. This is similar to the process for appointing a guardian for your children – giving you the reassurance of knowing that your pets will be loved and taken care of.
What other help can a solicitor offer?
You may need additional legal advice with making your will if you:
- Are a business owner or partner
- Own property overseas
- Are not a resident of England or Wales
- Have personal assets valued above £325,000 for an individual, or £650,000 combined with those of a spouse or civil partner
Solicitors can also offer advice on structuring your will so that the value of your assets is maximised and your beneficiaries receive as much as possible.
Give yourself the peace of mind of knowing that your wishes are clear and that your loved ones will be taken care of when the time comes. Contact us today on 01267 239 000 if you have any questions about preparing your last will and testament. If you already have all the information you need, click here to get started.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.