What is a will?
A will is a legal document that sets out your wishes after you die and includes:
- Who you (the testator) would like to benefit from your estate (your beneficiaries or legatees)
- Who will look after any minor children you may have if both their parents are dead (guardians)
- How your estate will be divided between your beneficiaries or legatees (percentages, specific amounts, specific items, etc)
- Who will collect in and distribute your assets and pay your debts (your executors)
What happens if I do not have a will?
If you die without making a will, you die ‘intestate’ and the law will determine who inherits your estate, following the intestacy rules. This means there is a risk that someone who you would not want to benefit from your estate will do or vice versa, someone who you would want to benefit misses out.
For instance, if you are in a relationship but are not married or in a civil partnership, when the first of you dies, the survivor does not inherit their estate if there is no will saying so.
Many people avoid making a will until it is too late. Then they die, and their family and friends are left to sort the estate out with no guidance. Having an up-to-date, valid will in place means you know that when you die, your wishes are contained in a legally binding document and must be carried out.
What is a mirror will?
Mirror wills are two separate wills, often made by a couple, where the content is largely the same. Each person can (so long as they have capacity) update, amend or revoke their will at any point in time without any obligation to inform the other person. They can also change their will after the other person dies.
What is a mutual will?
Mutual wills are made by a couple who agrees that they will not amend or revoke (cancel) their wills without notifying the other party. Having a mutual will also means that when the first person passes away, the surviving person cannot make a new will.
When should I update my will?
You should consider reviewing your will to see if it needs to be updated when:
- You have a change in personal circumstances, for example:
- Someone named in your will dies
- You or someone named in your will gets married
- You or someone named in your will gets divorced
- You or someone named in your will has a child
- You fall out with someone named in your will
- You have a change in financial circumstances, for example:
- Your finances significantly increase or decrease
- You buy or sell a property
- There is a change in the needs or circumstances of the beneficiaries
How do I update my will?
There are two ways to update your will:
- A codicil – only recommended for very minor amends
- A new will – better for more significant amends
What is a Codicil?
A Codicil is a legal document that amends a will.
What is a letter of wishes?
A letter of wishes is a document you can write yourself and store with your original will. You may choose to write a letter of wishes to give guidance to your loved ones without the guidance being legally binding.
Power of Attorney
At the same time as writing a will, we recommend you consider making Lasting Power of Attorney (LPA). Under a Property and Financial Affairs LPA you can appoint attorney(s) to look after your financial affairs should you become mentally or physically incapable of doing so yourself. Under a Health and Welfare LPA you can appoint attorney(s) to look after your health and welfare needs should you become mentally incapable of doing so yourself.
If you do not have LPAs in place and you lose capacity, your family may have to apply to the Court of Protection for the right to become your deputy, which can be an expensive and time-consuming process. In the meantime before deputyship orders are granted, your finances could be affected with nobody legally allowed to deal with them, and, if you do need care in a hospital or care home, your wishes may not be properly taken into account.
NB: timescales and fees are subject to change – please ask for details.
Yes. It is perfectly normal and perfectly legal to name the same person or people as both an executor and a beneficiary in your will.
Yes, if you are aged over 18 and have assets. This is because a will is the only way you can make sure that your wishes will be carried out after your death.
You only need to change your will if you change address if you have made a specific gift of that property in your will.
Yes. Entering into marriage or civil partnership after you made a will automatically revokes your will unless it was made specifically in contemplation of marriage or civil partnership and states that it is not to be revoked by the marriage or civil partnership.
Winston Solicitors do not charge for storing your will but some firms may.
Yes, this is possible. If the property is jointly owned by you and your spouse, it is essential that the property is held as tenants in common, rather than joint tenants. It is possible for you to leave your spouse a life interest in your half of the property and if your spouse goes into a care home after you die, only half the value of the house is taken into consideration by the local authority when carrying out a financial assessment to see if they had to pay for their own care. It is essential that the life interest trust is properly worded in the will and you should ensure that you consult a specialist solicitor.
No. If you would like to update us of a change by letter, please do so and we can keep this with your will.
If you are not married or in a civil partnership and you do not make a will then the answer is no. However, assets held in joint names and property held as joint tenants with your partner will pass automatically to them on your death.
It is wise to review your will if there is any change in your circumstances or those of the beneficiaries referred to in the will. In addition, if there are changes in inheritance tax legislation, it may be appropriate to review your will. As a rule of thumb, review your will every five years just in case.
If you do not make a will then the intestacy rules apply on your death. These rules contain a pecking order of who can inherit based on your family situation. This can mean that those who you wish to benefit from your estate could lose out and it could cause considerable hardship to them.
A will is an important legal document which governs the distribution of your estate (which is everything that you own) upon your death. If you die without making a will, you are ‘intestate’ and the law will determine who inherits your estate. It is important to seek professional legal advice when writing a will to ensure it complies with all legal requirements and can be executed with ease.
Many people believe that everything they own will automatically go to their spouse but this is not always the case. A properly drafted will sets out your wishes clearly and unambiguously
It can also deal with other matters, such as appointing guardians for any of your children under the age of 18. For clients with more valuable estates, having the correct will in place could save many thousands of pounds of inheritance tax.