Last Will and Testament

8 min read
Your last will and testament is a document which allows you to give specific instructions for the disposal of your estate after your death.

In legal terms, you are the testator(hence the word testament) and, in the document, you appoint one or more persons, the executor/s, who are to carry out your wishes regarding the distribution of your surviving assets and the person or people who they give these to are referred to as beneficiaries. Read on to find out more about this subject including what the best practices are.

We have a specialist legal advisor who drafts wills and can support you in setting out your last will and testament. The fee for a single will is £180 and we can complete the drafting work in 3 to 5 working days (depending on the time it takes for you to provide the information required. Call 0333 344 3234 (local call charges apply) to find out more.

NB Employing a solicitor to draw up a will formalising your intentions for your estate after you die remains the best way to protect your loved ones in the event of your untimely death. This is unlikely to change any time soon - please read what a top Government official said on the subject at the base of this article.

Why do you make a will?

You make your last will and testament in order that the people or organisations that you wish to benefit from your estate are able to do so legally and efficiently.

Because, for most people, the largest assets they normally hold are property, making a will is particularly important in this arena. This can often be of immediate importance if you die and other people live in your property because your choices literally affect 'the roof over their heads'.

If you die without making a will, you are referred to as intestate, and, as you can imagine, intestacy is highly undesirable. This is because it can result in drawn out legal wrangling as there may be more than one person who feels they have a claim on your surviving assets and these claims frequently end up being contested in a court of law, sometimes very bitterly.

If, on your death, your will is found to be in order after the appropriate information is given to the Treasury (including any death duties payable), then the Treasury gives your will executors Grant of Probate (also known as a Grant of Representation) to proceed with distributing your assets to your beneficiaries.

Conversely, if you die and are found to be intestate, your loved ones or close relatives may need to apply for a Grant of Letters of Administration, which can prove to be a long process.

How do you make a will?

We strongly recommend that you take appropriate legal advice when drafting a will because this is a highly complex area of law.

There are, however, certain aspects of the subject which do not greatly vary:

  • You have to be at least 18 years old and be 'of sound mind'.
  • You have to identify yourself clearly as the maker of your will - usually satisfied by putting the words 'last will and testament' on the face of the document.
  • You should clearly state that you are revoking any earlier wills you have made, if any, to avoid legal wrangling.
  • Your will must be signed (signature at the end of the will) and dated in the presence of at least two disinterested persons who are both at least 18 years old - neither can be beneficiaries, spouses of beneficiaries or members of your own family.
  • You must name one or more beneficiaries in your will.
  • You must appoint at least one executor. You normally appoint two but you can appoint a maximum of four.

Do you have to use a lawyer to make a will?

You do not have to use a lawyer to make your last will and testament but you should seriously consider consulting one.

Making a 'home-made' will can end with dire consequences. You have no professional person on hand to consult with as to your intentions and no trained eyes to correct any mistake you make. One common error found in many home-made wills is the appointing of a beneficiary (such as a spouse or a family member) as a witness: this can result in this witness being disinherited regardless of your will's contents.

One high-profile example of this in recent times concerns Barclays bank, who entered the home-made will business. A man drew up his own will using their product and, because there are no serious legal checks and balances on home-made will writing, had his bequest intentions seriously undermined on death.

He had intended for his child to inherit some portion of a house which his wife was living in (she was not related to the child) but, because of the rules of joint tenancy, which accompany marriage and civil partnership, his wife inherited everything. His will was cheap to make, at £90, but it's clear that the problems caused have vastly outweighed any cash saving.

Click to read more about how a £90 will cost half a house

Can you change your will?

Yes, assuming you are 'of sound mind'. This is called a codicil and can vary or completely revoke a part of a will or all of it. Your solicitor can advise you further about this.

Who should you choose as an executor?

You can choose to appoint your partner and people do this frequently but you should also consider putting in place other back up executors. If you're leaving any part of your estate to children aged under 18, you should appoint at least two back up executors.

You can appoint family members or friends even if you have nominated them as beneficiaries in your will. You can also appoint your firm of solicitors to do this.

What do will executors do?

Their essential functions include:

  • Collecting together records and details of your assets and debts
  • Preparing probate papers and the inheritance tax forms required by HM Revenue and Customs
  • Managing the sale of your home and contents
  • Distributing your estate according to your stated will.

Does marriage, civil partnership or divorce affect my will?

Any existing will you've made before getting married or entering into a civil partnership is automatically revoked unless the will expressly states that you made it in contemplation of marriage or civil partnership.

If you get divorced after making a will, the will remains valid but any gifts you instruct to be made to your former spouse are cancelled and they can no longer be an executor of your estate.

This subject is a great illustrator of why you should consult a solicitor when drafting a will: unintentional mistakes can have disastrous consequences, such as your spouse not inheriting all of your estate, which for example may mainly consist of your marital home, when you die.

Where should you keep your will?

You should keep your will in a safe and secure place, and many people opt for their chosen solicitors to do this for them.

What is a mirrored will?

A mirrored will is when two people either married or in a civil partnership each make their own will but, effectively they are making the same will, just substituting each other's names in various parts of each document. In other words each spouse names the other as executor and the remaining spouse inherits the entire estate automatically.

Solicitors do not normally charge for the price of drafting and witnessing two wills where mirrored wills are concerned because there is, as explained, little difference between each one.

How much does making your will cost?

We charge £180 for a single will or £299 for a mirrored will.

If you have any special requirements, please contact us on 0333 344 3234 (local call charges apply).

STOP PRESS: Are Wills set to be informalised in law?

The need to formalise a will correctly, about which the 'gold standard' is to involve a solicitor, is unlikely to change in the medium term and we therefore recommend that you don't 'cut corners' when it comes to setting down your intentions for your estate on your death.

A consultation paper published by the Law Commission in July 2017 asked various stakeholders for views regarding the law surrounding wills. One of its more controversial elements considered enabling the courts to recognise wills to be valid even where formalities have not been complied with, known as 'a dispensing power'.

About this matter, Junior Justice Minister Philip Lee stated in Parliament on 13 September 2017 that although electronic wills are valid in law, this was not to be taken as an informalising of wills in general under the law and in particular, he stated that a text message could not constitute a will.

Lee was responding to a question in Parliament about the Law Commission's consultation and stated:

'The Law Commission has not made proposals to allow wills and other testamentary dispositions to be created by text message or similar informal routes. The Law Commission is, however, currently considering the law of wills, including how the law can provide for the making of electronic wills, whilst ensuring testators are protected against risks of fraud and exploitation.’

He additionally stated that there were currently no plans to amend the legal requirements for making a will. The remarks were noted in various media reports.

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