Wills FAQs

Wills FAQs

Why should I make a will?

A will enables you to distribute your assets according to your wishes when you die. It’s also a means of providing for family members. Parents with minor children can use a will to appoint their choice of guardian to look after their children in the event the children are left without parents. You can also use a will to provide legacies or specific gifts to non-family members, such as charity, friends and employees.

What happens if I die without a will?

If a person dies without a will, his or her assets are distributed in accordance with what are known as the “intestacy rules” (and the person is said to have died “intestate”).

In England and Wales, the intestacy rules provide, for example, that the spouse (or civil partner) of the deceased gets the first 250,000 of the deceased’s assets, plus the deceased’s personal belongings and a “life interest” in half the remainder of the assets. The deceased’s children get half of the excess assets after the first 250,000, and the remainder on the spouse’s death. If the deceased is married without children or is unmarried, then there are further rules that apply.

What should be included in a will?

In preparing a will, you should think about a basic inventory of your assets (your home, its contents, your investments and bank accounts, etc.), and how you would like them to be distributed on your death.

You should also consider whether there are any particular items you would like to leave to specific individuals (for instance, my stamp collection should go to my nephew Sam, since he’s a keen stamp collector too). Do you want to make a bequest to a charity? If you have young children, you will want your will to say who is to be their guardian if you (and your spouse) should die before your children are old enough to look after themselves.

Your will should also appoint one or more executors.

What is an executor?

An executor administers the terms of a will. An executor’s basic responsibilities are collecting the deceased’s assets, paying debts (including inheritance tax), and distributing assets in accordance with the will. For some wills, that process can take some time. For example, if there are one or more properties to be sold or there are investments and assets in many different places and accounts, it may take several months to sell or find all the assets and distribute them (or their sale proceeds) in accordance with the will.

If a person dies without a will, he will have “administrators” rather than “executors”, and they will be appointed in accordance with statutory law.

The generic term for someone who is either an executor or an administrator is “personal representative,” and you will sometimes see this term in official publications or directions about dealing with the assets of a dead person.

How do I select an executor?

A person can appoint anyone as executor, and there can be more than one executor. Often people will select a combination of close friends or family members and a professional, such as a solicitor, bank or trust company. You will likely want to appoint an executor (or executors) that are responsible and will have the expertise, or access to expertise, necessary to administer your will in an efficient manner.

If there is a trust created in your will, you may want to appoint the same persons and/or professionals as executors and as trustees — although you may appoint separate executors and trustees if you wish. A trust may last for many years, and you will want to take that into account in selecting trustees.

What is a grant of probate?

A grant of probate is a court order that gives a deceased person’s executors authority to deal with the deceased person’s assets. Ordinarily, the persons named as executors apply to the court for a grant of probate as soon as possible after the date of death.

If there is no will, the court can give an equivalent order known as “letters of administration,” which gives the “administrator” authority to deal with the deceased’s assets.

What happens if I get married or enter into a civil partnership after making a will?

When a person gets married (or enters into a civil partnership) any existing will is automatically revoked — unless it is a will that he or she has made specifically in anticipation of the marriage or civil partnership. This may be particularly significant for someone who is planning a second marriage and who has an existing will benefitting children from his or her first marriage.

What happens if I get divorced?

On divorce or dissolution of a civil partnership, any gift in favour of your (former) spouse or civil partner is treated as having lapsed, and they will get nothing from your estate. The will itself continues to be valid, however, unless of course you re-marry — then, as indicated above, the will is automatically revoked.

What are the formal requirements for making a will?

To make a will, you need to be 18 or older. The will must be in writing. You need to sign it in the presence of two witnesses, who should also sign it as witnesses. The witnesses should not be beneficiaries under the will — if they are, any gifts to them will be void.

The person making the will must also be of sound mind and under no duress. Moreover, he or she must sign the will with the intent to make a will.

Where should I keep my will?

In most cases where people use a solicitor to prepare a will, the solicitor keeps the will for you. This is not a requirement. You may keep your will anywhere you like and you are free to make copies and distribute it.

There are, however, some practical considerations that you may want to bear in mind. First, you will probably want your executors to have ready access to the definitive version of your will as soon as possible after you die. Among other things, that will enable them to obtain a grant of probate and initiate the administration of the will without delay. Second, you will likely want to avoid a situation where there are competing versions of your will in circulation, with arguments amongst your beneficiaries as to which version governs. It is best if you have a means of storing your will that puts the matter beyond doubt.

Where can I get assistance in making a will?

Traditionally, solicitors have prepared wills and many people continue to use solicitors for their wills. In recent years, however, there has been a proliferation of books and online resources for those wanting to draft their own wills. Some people have used these successfully, whereas others have tried them, only to discover that the process is much more complicated than they had anticipated.

For a person with vulnerable dependants, such as minor children or an elderly spouse, good advice and a well-drafted will are especially important. An error in a will could result in unnecessary taxes, the failure of a gift, or other consequences that could affect the well-being of such dependants.

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