Family

This information applies to England, Wales and Northern Ireland

Why it is important to make a will

It is important for you to make a will whether or not you consider you have many possessions or much money. It is important to make a will because:-

• if you die without a will, there are certain rules which dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed
• unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a will, so the death of one partner may create serious financial problems for the remaining partner
• if you have children, you will need to make a will so that arrangements for the children can be made if either one or both parents die
• it may be possible to reduce the amount of tax payable on the inheritance if advice is taken in advance and a will is made
• if your circumstances have changed, it is important that you make a will to ensure that your money and possessions are distributed according to your wishes. For example, if you have separated and your ex-partner now lives with someone else, you may want to change your will. If you are married or enter into a registered civil partnership, this will make any previous will you have made invalid.

If you are in any doubt as to whether or not you should make a will, you should consult a solicitor or a Citizens Advice Bureau who can give you lists of solicitors. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

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Is it necessary to use a solicitor

There is no need for a will to be drawn up or witnessed by a solicitor. If you wish to make a will yourself, you can do so. However, you should only consider doing this if the will is going to be straightforward.

It is generally advisable to use a solicitor or to have a solicitor check a will you have drawn up to make sure it will have the effect you want. This is because it is easy to make mistakes and, if there are errors in the will, this can cause problems after your death. Sorting out misunderstandings and disputes may result in considerable legal costs, which will reduce the amount of money in the estate.

Some common mistakes in making a will are:-

• not being aware of the formal requirements needed to make a will legally valid
• failing to take account of all the money and property available
• failing to take account of the possibility that a beneficiary may die before the person making the will
• changing the will. If these alterations are not signed and witnessed, they are invalid
• being unaware of the effect of marriage, a registered civil partnership, divorce or dissolution of a civil partnership on a will
• being unaware of the rules which exist to enable dependants to claim from the estate if they believe they are not adequately provided for. These rules mean that the provisions in the will could be overturned.

When it is particularly advisable to use a solicitor

There are some circumstances when it is particularly advisable to use a solicitor. These are where:-

• you share a property with someone who is not your husband, wife or civil partner
• you wish to make provision for a dependant who is unable to care for themselves
• there are several family members who may make a claim on the will, for example, a second wife or children from a first marriage
• your permanent home is not in the United Kingdom
• you are not a British citizen
• you are resident here but there is overseas property involved
• there is a business involved.

Other help with writing a will

If you are a member of a trade union, you may find that the union offers a free will writing service. A union will often use its own solicitors to undertake this work.

There are books which provide guidance on how to draw up a will. These can help you decide if you should draw up your own will and also help you decide if any of the pre-printed will forms available from stationers and charities are suitable. It is also possible to find help on the internet.

Will writing services are available. However, will writing firms are not regulated by the Law Society so there are few safeguards if things go wrong.

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How much does a solicitor cost

The charges for drawing up a will vary between solicitors and also depend on the complexity of the will. Before making a decision on who to use, it is always advisable to check with a few local solicitors to find out how much they charge. You may have access to legal advice through an addition to an insurance policy which might cover the costs of a solicitor preparing or checking a will. If you are a member of a trade union you may find that the union offers a free wills service to members.

It is also worth you giving some thought to what you want to say in the will before seeing a solicitor. This should help reduce the costs involved.

In Northern Ireland, you may be able to get help with the legal costs of making a will under the green form scheme. In England and Wales, the legal help scheme only covers the making of a will if you are eligible on financial grounds and are:-

• 70 or over; and/or
• disabled; and/or
• a parent of a disabled person and wish to provide for that person in the will; and/or
• a single parent who wishes to appoint a guardian in your will.

For more information about the legal help scheme in England and Wales, see Help with legal costs.
For more information about the green form scheme in Northern Ireland, see Help with legal costs.

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What should be included in a will

To save time and reduce costs when going to a solicitor, you should give some thought to the major points which you want included in your will. You should consider such things as:-

• how much money and what property and possessions you have, for example, property, savings, occupational and personal pensions, insurance policies, bank and building society accounts, shares
• who you want to benefit from your will. You should make a list of all the people to whom you wish to leave money or possessions. These people are known as beneficiaries. You also needs to consider whether you wish to leave any money to charity
• who should look after any children under 18
• who is going to sort out the estate and carry out your wishes as set out in the will. These people are known as the executors (see below).

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Who 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.

Who to choose as executors

It is not necessary to appoint more than one executor although it is advisable to do so, for example, in case one of them dies. It is common to appoint two, but up to four executors can take on responsibility for administering the will after a death. The people most commonly appointed as executors are:-

• relatives or friends
• solicitors or accountants
• banks
• in England and Wales, the Public Trustee or in some cases the Official Solicitor if there is no one else willing and able to act.

It is important to choose executors with considerable care since their job involves a great deal of work and responsibility. You should always approach anyone you are thinking of appointing as an executor to see if they will agree to take on the responsibility. If someone is appointed who is not willing to be an executor, they have a right to refuse.

If an executor dies, any other surviving executor(s) can deal with the estate. If there are no surviving executors, legal advice should be sought.

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Requirements for a valid will

In order for a will to be valid, it must be:-

• made by a person who is 18 years old or over; and
• made voluntarily and without pressure from any other person; and
• made by a person who is of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identify of the people who may inherit; and
• in writing; and
• signed by the person making the will in the presence of two witnesses; and
• signed by the two witnesses, in the presence of the person making the will, after it has been signed. A witness or the married partner of a witness cannot benefit from a will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the will is still valid but the beneficiary will not be able to inherit under the will.

Although it will be legally valid even if it is not dated, it is advisable to ensure that the will also includes the date on which it is signed.

As soon as the will is signed and witnessed, it is complete.

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Where to keep a will

Once a will has been made, it should be kept in a safe place and other documents should not be attached to it. There are a number of places where you can keep a will:-

• at home
• with a solicitor
• at a bank
• at the Principal Registry of the Family Division of the High Court, a District Registry or Probate Sub-Registry for safe keeping. If you wish to deposit a will in this way you should visit the District Registry or Probate Sub-Registry or write to:-
  
  The Probate Department
  The Principal Registry of the Family Division
  First Avenue House
  42-49 High Holborn
  London WC1V 6NP
  Tel: 020 7947 6000
  
  In Northern Ireland, wills can be deposited with:-
  
  Probate Office
  Royal Courts of Justice
  Chichester Street
  Belfast BT1 3JF
  Tel: 028 9023 5111
  
  District Probate Office
  The Court House
  Bishop Street
  Londonderry BT48 6PY
  Tel: 028 7126 1832

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Searching for copies of a will

Postal application

When writing to request a copy of a will by post, the forename(s), surname, date of death and last known address of the person who has died, must be provided in the letter sent to one of the addresses below. In England and Wales, the York Probate Sub-Registry will pass requests to the probate registry keeping the will and grant of probate, which will send the required copies direct to the individual. In Northern Ireland, the probate Office will send copies of the wills that it holds direct to the individual. The address to write to is:-

In England and Wales
The York Probate Sub-Registry
1st Floor
Castle Chambers
Clifford Street
York YO1 9RG
Tel: 01904 666777

A fee of £5, which pays for the search and one copy of the will and grant of probate, should be sent with each application. Fees should be paid by crossed cheque or postal order made payable to Her Majesty's Court Service. In Northern Ireland, fees should be paid by crossed cheque or postal order made payable to the Supreme Court Fees Account. Further copies of the will and grant of probate can be ordered, for a fee of £5 for the first copy and £1 for further copies ordered at the same time.

Personal application

You can make a personal search free of charge by going to the Principal Registry of the Family Division (see under heading Where to keep a will). If you want to inspect or take a copy of the will, there is a fee of £5.

In Northern Ireland, you should contact the Probate Office, (see under heading Where to keep a will), which will be able to tell you where to go to make a personal search, and any fees that are payable.

Local application

In England and Wales, you can order a copy of a will or grant of probate at any District Probate Registry. You will need to give the full name of the person who died, the date probate was granted and the name of the registry office where it was issued. The fee is £5. To find a District Probate Registry, go to HM Courts Service website at: www.hmcourts-service.gov.uk.

In Northern Ireland, if the District Probate Registry dealt with the will (see above) it is possible to inspect the documents there.

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Change of circumstances

When a will has been made, it is important to keep it up to date to take account of changes in circumstances. It is advisable for you to reconsider the contents of a will regularly to make sure that it still reflects your wishes. The most common changes of circumstances which affect a will are:-

• getting married, remarried or registering a civil partnership
• getting divorced, dissolving a civil partnership or separating
• the birth or adoption of children, if you wish to add these as beneficiaries in a will.

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How to change a will

You may want to change your will because there has been a change of circumstances. You must not do this by amending the original will after it has been signed and witnessed. Any obvious alterations on the face of the will are assumed to have been made at a later date and so do not form part of the original legally valid will.

The only way you can change a will is by making:-

• a codicil to the will; or
• a new will.

Codicils

A codicil is a supplement to a will which makes some alterations but leaves the rest of it intact. This might be done, for example, to increase a cash legacy, change an executor or guardian named in a will, or to add beneficiaries.

A codicil must be signed by the person who made the will and be witnessed in the same way. However, the witnesses do not have to be the same as for the original will.

There is no limit on how many codicils can be added to a will, but they are only suitable for very straightforward changes. If a complicated change is involved, it is usually advisable to make a new will.

Making a will

If you wish to make major changes to a will, it is advisable to make a new one. The new will should begin with a clause stating that it revokes all previous wills and codicils. The old will should be destroyed. Revoking a will means that the will is no longer legally valid.

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Destroying a will

If you want to destroy a will, you must burn it, tear it up or otherwise destroy it with the clear intention that it is revoked. There is a risk that if a copy subsequently reappears (or bits of the will are reassembled), it might be thought that the destruction was accidental. You must destroy the will yourself or it must be destroyed in your presence. A simple instruction alone to an executor to destroy a will has no effect. If the will is destroyed accidentally, it is not revoked and can still be declared valid.

Although a will can be revoked by destruction, it is always advisable that a new will should contain a clause revoking all previous wills and codicils. Revoking a will means that the will is no longer legally valid.

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If a person who made a will commits suicide

If a person who made a will commits suicide, the will is still valid.

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Challenging a will

A person may want to challenge a will because:-

• they believe that the will is invalid; or
• they believe that they have not been adequately provided for in the will.

There are strict time limits for challenging a will and if you want to challenge a will, you should seek legal advice as soon as possible. Your local CAB can give you lists of solicitors. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

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