2: Frequently Asked Questions

Can I make a Will?

If you live in England and Wales you have to be age 18 or over. You can make a Will in Northern Ireland if you are less than 18 years of age if you are married. In Scotland you can make a Will from the age of 12.

You must also have the mental capacity to know what you are doing. You must know that, by your actions, you are making a will which will distribute your property.

Do I need a solicitor to make a Will?

No, there is no requirement to have a solicitor draft a Will. A letter could in fact be a legal Will.

What is a Will?

A Will is a legal document in which you state what you would like to happen to your estate. Your Will is an invaluable opportunity for you to clearly let your intentions be known relating to:

What makes a Will valid?

For a Will to be valid it must:

There is one clause that should always be inserted in a Will. This is the attestation clause, the part of the will that deals with the witnessing of the testator's signature. If there is no attestation clause, an affidavit made by at least one witness, giving details of how the will was signed and witnessed, will be needed when the application for probate is made after the testator's death.

Sometimes the witnesses are dead or have moved, and so the signature cannot be proved. In either case, there will be great difficulties in obtaining the grant of probate if there is no attestation clause.

Sample Attestation Clause:

Where should I keep my Will?

Once your choice of executor has agreed to act it is important that you remember to tell them where you are going to keep the Will. It is also advisable to let them know in writing so that they have a record that they can file away for future reference.

If your Will can't be found at the time of your death then it may be deemed not to exist. Putting it somewhere safe and letting people know where it is kept is very important.

What happens to my Will if I marry?

In England, Wales and Northern Ireland, your Will becomes invalid when you marry or enter into a civil partnership, unless the Will clearly states that it was written in anticipation of you marrying or entering into a civil partnership with a named person.

How often should I update my Will?

You should review your Will at least every five years and after any major life change such as getting separated, married or divorced, having a child or moving house. It is best to deal with any major changes by getting a new Will drawn up.

How do I revoke my Will?

Once you have written your Will, signed it, and had it witnessed, it is valid until revoked. There are 3 ways to revoke your Will:

Is there anything I can't leave in my Will?

Firstly, you cannot leave anything in your Will which you do not fully own. So, for example, if you jointly own a property under a joint tenancy with somebody then upon your death your share automatically goes to the surviving co-owner(s).

However, if you own the property under a tenancy in common (which means you each own a specified share) then you can give your share of the property to whoever you wish - i.e. you can leave it in your Will.

If you have a life insurance policy, it will generally be expressed to be for the benefit of a named person and will therefore not pass into your estate when you die. So you do not need to mention it in your Will.

Your pension rights may similarly pass outside your Will in the same way. Your employer or pension provider should have more details.

What if I want to leave people out of my Will?

If you intend to exclude any of the following from your Will:

then you should be aware that under the Inheritance (Provision for Family and Dependants) Act 1975 they can legally contest the Will if they are excluded or under-provided for and you are advised to write a separate letter to be kept with your Will explaining your reasons for excluding them. This letter can then be read out in court if the Will needs to be 'defended' and (if your reasons are valid) will decrease the contester's chances of winning.

To get a Will invalidated for any other reason someone would have to go to court to prove one or more of the following:

To prevent any disputes always try to make sure that your will is clearly written, that it is not ambiguous in any way, and that your wishes are stated clearly and concisely.

What is a Mirror Will?

A mirror will is used when a husband, wife or partner make almost identical wills that leave everything to each other if one of them dies. If they die together their estate is left to their children (if there are any), if there are no children then to someone who is nominated in the will. Technically there is no such thing as "a joint will" - a mirror will is actually two completely separate legal documents although they both have very similar contents that "mirror" each other.

What is a Mutual Will?

A mutual Will is written in such a way, with stipulations included within it, in which both testators agree that the survivor's Will is to remain unchanged after the death of the first to die. A mirror Will has no such stipulation or clause within it.

If the Wills are mutual Wills (as opposed to mirror Wills) then the Wills cannot be revoked without the other's consent. A trust is imposed which frustrates any revocation.

A mutual Will can be revoked on the occasion of a subsequent marriage. However the Trust will still be operational over the property which may have been received on the first death.

What is Probate?

When a person dies somebody has to deal with liquidating their estate by collecting in all the money due, paying any debts that are outstanding and distributing the estate to those people who are the beneficiaries. The term 'probate' often means the issuing of a legal document to one or more people authorising them to do carry out these tasks.

The Probate Registry issues a probate document which is called a 'Grant of Representation'. There are three types of grant of representation:

What are Executors?

Executors are the people who will be responsible for carrying out our 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.

Executors have usually been specifically named to act in a Will. If a person has not been named but wants to become an executor they can apply for an administrative grant to the Probate Registry.

The people most commonly appointed as executors are:

There can be a maximum of four executors named in any one Will but the standard is usually two.

Can an executor of a Will also be a beneficiary?

Yes they can, but witnesses may not be beneficiaries.

What is included as part of the estate?

Your estate is made up of your chattels and any wholly owned property less any debts, expenses and taxes.

If property is jointly owned then that automatically passes to the other person. Jointly owned property can not be included in a Will. Property that is owned as Tenants in Common can be included in a Will as a specific share of the property is owned.

What happens if two people die at the same time?

Where there is no medical evidence as to who died first, the elder of the two is deemed to have died first, unless there is explicit provision in the Will.

What happens if I die without a Will?

When there is no Will the 'Rules of Intestacy' (i.e. the government) states who should get what amount depending on the total net value of your estate.

Many people erroneously think that their Estate will go to their partner when they die. This isn't necessarily the case. For Example, an unmarried partner will be entitled to nothing. Even a spouse may not receive the entire Estate and worryingly, may not receive enough to maintain their current lifestyle.

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