FAQ

What is a will?
Who or what is the Testator?
What exactly is my ‘estate’?
What if I don’t leave a will?
Does my spouse/civil partner automatically get everything?
What constitutes a valid will?
What if my circumstances change?
Will all of my property pass under the will?
Can I leave property to an animal?
What if I decide to change my will at a later date?
What happens if I miss someone out?
How do I revoke a will?  Is tearing it up sufficient?
How much does it cost?
Why should I write a will?
What about cohabitants?
I do have a will but it was written some time ago. Do I need to update it?
What do I do once I have written a will?
Where should I store my will?
 What is a Living Will?
What is Administration?
How do I obtain the probate?
I have been left a legacy under a will but am not entitled to it until I reach a certain age.  Is there any way of getting hold of some money now?
What happens if relatives or beneficiaries cannot be found?

What is a will?
A legal document containing the testator’s (the person making the will) wishes his or her property to be distributed following their death.

Who or what is the Testator?
The subject of the will – the person whose property will be distributed.

What exactly is my ‘estate’? – The aggregate of the property you own beneficially (ie: not property which you hold on trust for others).

What if I don’t leave a will?
If you don’t leave a will then the English laws of intestacy apply – but these often do not result in the outcome that the deceased person would have wanted.

Why should I write a will?

  • Security and Peace of Mind – to make sure that those who depend on you are provided for.
  • Time, Convenience and Money – wills take a lot less time to finalise than relying on intestacy rules because beneficiaries may not be able to draw any money before the will is settled. A will also reduces the scope for disputes between beneficiaries.
  • Clarity – if nobody knows what you would have wanted (eg for nominating guardians for your children) then it is the responsibility of the Court to decide, and this may result in a judgment that you would not have wanted.
  • Reducing Administration Expenses – Much of your valuable wealth may be unnecessarily used up in administration, for example speculating what you would have wanted.
  • Tax Planning Advantages – by writing a will you may be able to use a more tax efficient distribution method.
  • Appointing executors – you to appoint a trusted individual as to execute your will. Under intestacy rules it is the court appoints ‘administrators’ to do the necessary paperwork.
  • Control and Certainty – you can control what happens to your property after your death. You can make specific gifts to named individuals or leave property to charities or organisations that you have always supported.
  • Creating Trusts – you can create trusts for your partners or children to provide for them in the future.
  • Change in Circumstances – In addition, your wishes may change when certain major events occur in your life such as:
    • Getting married
    • Moving in with someone
    • New Pensions
    • Life assurance policies
    • Having children

Does my spouse/civil partner automatically get everything?
It is a mistake to assume that this is the case. Children, siblings, and parents may also have a claim to your estate.

What about cohabitants?
If you are living as a couple but not married, you will be treated as a single person and a surviving partner may get nothing at all. In this situation it may be important to write a will to provide for your partner.

What constitutes a valid will?

  • Legal Capacity – the testator must have the necessary legal ‘capacity’. Essentially they must be 18 or over and must have requisite mental capacity to make a will.
  • Legal Intention – There must be both general (the decision to make a will) and specific (the intention to make this particular will) intention.
  • The testator must understand:

(1)               the nature of his act and its broad effects;

(2)               the extent of his property (although not necessarily recollecting every individual item); and

(3)               the moral claims he ought to consider (even if he decides to reject such claims and dispose of his  property to other beneficiaries).

  • Formalities – certain formalities laid down in the Wills Act 1837 must also be complied with.

What if my circumstances change?
Certain events, for example marriage will revoke a will and you will have to make a new one.

Will all of my property pass under the will?
Not all property will pass under his will.  Some will for example pass via insurance policies or by the rules of survivorship.

Can I leave property to an animal?
The short answer is no. In English law animals are not recognised as having legal personality and cannot therefore hold property. Also, in order for a trust to operate it must be capable of being enforced by the beneficiaries under it.
However, using the intricacies of private purpose trusts, money can be left for the purpose of maintaining the animal.

What if I decide to change my will at a later date?
A will can be changed by codicil but it is often advisable to redraft a new will to ensure that the previous will is revoked.

What happens if I miss someone out?
The Inheritance and Family provision Act enables people not mentioned in the will as beneficiaries to make a claim where they ‘ought’ to have been contemplated.

How do I revoke a will?  Is tearing it up sufficient?
It would be very unwise to rely on simply destroying the physical document.  Destruction is only evidence of revocation, it is not revocation itself.  This is in case the will was destroyed accidentally or by mistake.

I do have a will but it was written some time ago. Do I need to update it?
The chances are that you will. Changed circumstances (eg. Marriage, divorce, children, grandchildren) may mean that your desire to leave property to certain individuals or organisations has changed.

What do I do once I have written a will?
Keep the original safe!  At Crosby & Moore we provide a storage facility service to ensure that your will is looked after. It is advisable to make copies to give to friends and/or family members for safekeeping. It is a good idea to make sure at least one other person is aware of the location of your original will.

Where should I store my will?
Wills obviously need to be kept in a safe place – a bank safe deposit box or a solicitor’s office.

What is a Living Will?
A living will is a legal document quite separate from your will. It states how you wish to be cared for while you are still alive, in case for some reason you couldn’t specify these wishes yourself. It covers for example whether you wish to be placed on life support systems where there is no medical hope of recovery.

What is Administration?
Administration is the process of dealing with the deceased’s estate, where there is a valid will.  It includes collecting the assets, paying the debts and taxes and distributing the balance of the estate amongst the persons entitled.

How do I obtain the probate?
Once you die your Will must be ‘administered’ by your personal representatives (the executors appointed in your Will). Your executors must instruct someone authorised to carry out transactions and legal executions in your absence for the limited purpose of filing your will with the ‘probate court’.
The attorney and clerk of court will then close out your affairs by first notifying all your creditors of your death and by closing your various accounts. It is only after this has taken place, as well as funeral and administrative expenses being paid that your assets can be transferred in accordance with your wishes

I have been left a legacy under a will but am not entitled to it until I reach a certain age.  Is there any way of getting hold of some money now?
Yes – an advancement can be made whereby a payment is made to a beneficiary of part of their share before they reach the specified age.

What happens if relatives or beneficiaries cannot be found?
Under extreme circumstances ownerless property passes to the Crown as bona vacantia. This is extremely rare.

For further information and a confidential discussion please contact us on 01273 734600, or by e-mail on pat@crosbymooresolicitors.co.uk