A Will is a legal document that takes effect upon your death and which sets out how you want to distribute your assets and property (known as your Estate) to those whom you wish to receive them (known as your Beneficiaries). In your Will you will appoint a person or people who deal with your Estate (known as your Executors) and who will ensure that your wishes are put into effect. You can also use a Will to appoint a person or people to look after your minor children in the event that they are left without a parent (known as Guardians).
It is important that you have a Will for a number of reasons, not least of which is that without one you cannot be sure that your Estate will pass, on your death, to those whom you would wish to receive it. If you die without having made a Will, then you will be regarded as having died “Intestate” and the rules of intestacy will decide who gets your property. This could result in those closest to you (for example a partner to whom you are not married, step children and friends) not receiving anything from your estate.
Other benefits of having a Will are that you can help make things easier for those who have to deal with your estate after your death, you can make provision any minor children, you can reduce the amount of tax which your estate might otherwise have to bear and you can give instructions as to what you want to happen to you after your death – for example burial or cremation.
In England and Wales, anyone who is aged 18 or over (for some members of the armed forces, 16 or over) can make a Will provided they have the necessary testamentary capacity to do so. In other words the person making the Will must:
The simple answer is no, you do not need a solicitor. However, in reality making your own Will can be somewhat dangerous and it is highly recommended that you seek some form of legally qualified advice and guidance. Using YourWill is one way of making sure that you receive that advice and guidance in a manner that is appropriate to your needs.
The main reason why making a Will without assistance is not a good idea is that you need to be very clear as to what it is you intend in your Will. You will not be around to tell your executors if they are doing the right thing – therefore your written Will must be very clear and totally unambiguous.
A Will made online is equally as valid as one made by any other method, provided that you observe the legal requirements and it is dated, signed and witnessed correctly in accordance with the instructions which we will provide you with.
Wills created using YourWill are fully legal documents within England and Wales. The fact that they have been created online and possibly even printed out in your own home does not affect the legal validity whatsoever. What is more, because YourWill is a Will production service provided by solicitors, you can be sure that the all steps have been taken to ensure that your Will reflects your requirements as closely as possible. You can even have us check through the Will you have drafted to make sure that you have not made any obvious mistakes.
That depends upon a number of factors including the complexity of your Will, what information needs to be gathered before it is made and how quickly you are able to make it.
Provided that you have all of the information to hand, then using our online do-it-yourself Will drafting system you can have an executed Will within the hour. All that you need to do is to complete the interactive Will questionnaire, print off your Will and then arrange for it to be signed and dated.
If you want us to check through your Will for you, or if you want to ask questions about a particular aspect of the Will, then this will inevitably mean that there will be a delay while we check the Will or deal with your queries.
If you want to produce a bespoke Will, or if your personal circumstances are complex, then it may take several days for your Will to be completed. This will be the case in particular if you need to obtain details about investments and other property or if we are required to draft trusts to make provision for your dependants.
If you die without having made a valid legal Will then you will be regarded as having died ‘Intestate’ and the general law will dictate who inherits your Estate. The practical effect of this is that those closest to you may not receive anything from your estate whilst more distant relatives such as aunts and uncles may receive the whole of your estate.
The main purpose of a Will is to set out instructions as to who should receive your Estate (or a part of it) after you die. It is the document which allows you to make sure that your dependants are provided for and that those who you would like to receive something do so. This is achieved by leaving specific gifts of property or money or by leaving the whole of your Estate after the payment of debts, taxes and gift (known as your Residue or Residuary Estate).
In addition, your Will is the place where you can set out:
Whilst it is advisable for a Will to be dated, this is not a legal requirement and the Will is still going to be valid if undated.
Executors are the people whom you want to deal with your Estate after your death and who will be responsible for ensuring that your wishes are carried out and your debts and taxes paid.
The role of the Executor is to obtain a grant of Probate for your Estate, gather in all of your assets, sort out your debts and tax liabilities, organise and pay for your funeral, pay out or make any gifts left under your Will, discharge the costs of administering your Estate and pay any residue which is left over to the right people or, if they are also your trustees, look after any residue until such time as it can pass to the appropriate person(s).
An executor must be aged 18 or, of sound mind and not in prison. Ideally they should also be physically close enough that they are able to deal with your Estate. An Executor in Australia may have problems dealing with an Estate in England.
You do not need to appoint more than one executor although it is usual to have at least two. You can appoint up to four people who are able to act as Executors at the same time, although you can appoint as many substitute executors as you wish – provided that they only become executor after one of the main appointed Executors fails to take up the appointment.
You should appoint as Executors people whom you can trust to deal with your affairs on your behalf and who are able to do so – either alone or with the help of a professional such as a solicitor. This may include relatives or friends. It is vital that you choose Executors carefully as their role involves considerable responsibility.
You can appoint a solicitor to act as your Executor – either alone or together with someone else such as a spouse of other beneficiary. Richard Nelson LLP, who provide the YourWill service, will be happy to act as your executor should you wish them to do so.
You can change or cancel your will at any time.
If the change to your Will is a fairly minor change then you can do this by means of a document called a Codicil – which is a formal document which you will sign and which is then kept with your Will. You can make a Codicil online using the YourWill service.
If the changes to your Will are more fundamental, then we would suggest that you remake your Will completely setting out the new terms. This has the added advantage that the terms in your earlier Will which you changed will not become public knowledge after you die – which may be important if embarrassment could be caused.
What you must not do is simply change the words of your existing Will by hand – even if you sign or initial those changes.
If you want to cancel your Will then there are two ways to do this – either by making a new Will which revokes your previous Will or by physically destroying the old Will – e.g. by burning it or tearing it up.
Provided that your circumstances do not change, and provide that you do not revoke your Will, change its terms by Codicil, or destroy your Will, then your Will continue to apply until your death.
However, if you get married or enter into a Civil Partnership, then your Will comes to an end (unless you expressly made it in contemplation of marriage and the Will states this fact).
If you get divorced or your Civil Partnership is annulled, then any gift to your former spouse or Civil Partner will lapse unless your Will states that this is not to occur.
Yes, a Will can be changed after your death, provided that:
The change is made by means of a Deed of Variation (sometimes also known as a deed of family arrangement or an instrument of variation).
There are a number of reasons why your beneficiaries might want to vary the terms of your Will. These include:
You can make a deed of variation using the YourWill online service or you can contact us and we will be happy to advise you further.
Theoretically, you can store your Will anywhere you wish, including at home. However, you would be well advised to store your Will somewhere secure so that it is available in the event that you die. Bear in mind that if your Will is stolen or destroyed by fire then it will be extremely hard for your Executors to deal with your estate and you may be deemed to have died intestate.
YourWill offers a secure storage facility for your Will and also offers additional benefits including regular Will reviews, notification cards for Executors, certified offsite copies and many other benefits.
If you own property abroad then it is vital that, when leaving property on death, you do so in accordance with the laws of the country in which the property is located rather than in accordance with the law of England and Wales.
Often, other countries will have very different succession laws from those in this country and, if the right processes and documents are not used then you could find that your property passes to someone other than those to whom you want it to pass or that long delays in dealing with the property could be encountered by those dealing with your estate.
There is no reason why a beneficiary cannot also be an executor and, indeed, it is quite common, for example, for a spouse who receives the residuary estate under a Will also to be an executor, either alone or in conjunction with a professional person such as a solicitor.
Note, however, that a beneficiary cannot witness a Will in which they benefit.
If, for example, your a Will provides for one or more of your beneficiaries not to receive a gift immediately, or that a person should receive the interest on a sum of money but not the capital itself – then you will need to set up what is known as a Trust.
The person who will be responsible for looking after that trust after you die will be called a trustee. Whilst it is not uncommon for your Trustees to be the same people as your Executors , they do not have to be and their duties as Trustees will differ from their duties as Executors and potentially last for a considerably longer period of time.
Their duties will include:
An executor can be the same person as a trustee or different people can be appointed. The choice is entirely yours.
Probate is the process by which a person’s Estate is administered after their death. It covers the gathering in of assets, the payment of debts and liabilities and the distribution of the deceased’s Estate in accordance with the terms of their Will. It is also the word which is given to the official grant by the courts of the power to administer the Estate.
If there is no Will, then the process of dealing with a person’s Estate is called an administration and the official grant to the administrator is called Letters of Administration.
There are two main ways in which property may be owned by more than one person. These are as joint tenants and as tenants in common.
If property is owned as joint tenants then it means that the whole of the property is owned by all of the joint tenants and upon the death of any one of them the property will continue to be owned by the survivor(s). This is the way in which those who are married or in a civil partnership normally own property.
If property is owned as tenants in common then each owns a specific share of the property (the size of the share being set out in the deed creating the tenancy in common) and on the death of one of the tenants in common their share will pass according to their Will or in accordance with the rules of intestacy.
Your Will is one of the best places for you to make provision for your minor children in the event that they should be left without a parent.
By using your Will to appoint someone as their guardian you can ensure that in the event that your children are left without a parent that the person or people whom you want to be the guardians of your children are appointed.
Whilst there is no need for a married couple to appoint each other to be the guardians of their own children, they already have that responsibility, you might want to appoint a guardian if:
Inheritance tax is charged on the value of a deceased persons estate when that value exceeds a certain figure. Currently (for the tax year 2010-2011) UK legislation provides that inheritance tax is payable on estates valued at over £325,000, the rate of tax being 40% of the amount by which the estate exceeds £325,000. Note that since October 2007, married couples and registered civil partners can increase the tax-free threshold on their estate when the second of them dies.
Your Will can be disputed after your death for a number of reasons. These include:
Although you do not have to make specific provision for anyone in particular in your Will, if you do not provide for those who are dependant upon you then you run the risk of the Will being challenged under the Inheritance (Provision for Family and Dependants) Act 1975. If this occurs then money could be wasted by your estate and by those for whom you are responsible in bringing such a claim.