Wills, Living Wills and Probate
We are not experts in Wills, or Probate for that matter, so the majority of the information we have here, has come directly from the Governments public services website, which has been specifically put together for such enquiries in the UK.
Below you will find sections on -
* Making a Will
* Living Wills: Advance Decision or Directive
* When there is No Will
There are also links to the Citizens Advise Bureau and Age Concern, who are also great sources of information concerning these issues.
Making a Will
By making a will you can decide what happens to your property and possessions after your death. Although you do not have to make one by law, it is the best way to make sure your estate is passed on to family and friends exactly as you wish. If you die without a will, your assets may be distributed according to the law rather than your wishes.
Why it's important to make a will
A will sets out who is to benefit from your property and possessions (your estate) after your death. There are many good reasons to make a will:
* you can decide how your assets are shared - if you don't have a will, the law says who gets what
* if you're an unmarried couple (whether or not it's a same-sex relationship), you can make sure your partner is provided for
* if you're divorced, you can decide whether to leave anything to your former partner
* you can make sure you don't pay more Inheritance Tax than necessary
Preparing your will
Although it is possible to write a will by yourself, it is advisable to use a solicitor as there are various legal formalities you need to follow to make sure that your will is valid. You may also need legal advice for more complicated matters. A solicitor can also advise you about how Inheritance Tax affects you.
A solicitor may be able to visit you in your own home, care home or hospital.
The cost of writing up a will can vary between solicitors and will depend on how complicated your affairs may be and the experience of the solicitor.
As well as solicitors, voluntary organisations such as the Citizens Advice Bureau and Age Concern can also help with your will.
What should be included in your will
Before you write your will or consult a solicitor, it's a good idea to think about what you want included in your will. You should consider:
* how much money and what property and possessions you have
* who you want to benefit from your will
* who should look after any children under 18 years of age
* who is going to sort out your estate and carry out your wishes after your death - that is your executor
An executor is the person responsible with passing on your estate. You can appoint an executor by naming them in your will. The courts can also appoint other people to be responsible for doing this job.
Where to keep your will safe
Once you've made your will, it is important to keep it in a safe place and tell your executor, close friend or relative where it is. If a solicitor makes your will, they will normally keep the original and send you a copy. You can ask for the original if you wish to hold it.
Keeping your will up-to-date
You should review your will every five years and after any major change in your life - such as getting separated, married or divorced, having a child or moving house. Any change must be by 'codicil' (an addition, amendment or supplement to a will) or by making a new will.
Making a will in Scotland
Scottish law on inheritance differs from English law. If you live in Scotland and want to make a will, you can contact a solicitor or voluntary organisations such as Age Concern Scotland or Citizens Advice Bureau for advice.
The Scottish Executive's 'Rights of succession' guide explains what happens if someone dies in Scotland without making a will.
Age Concern Scotland guide to making a will Opens new window
Citizens Advice Bureau in Scotland Opens new window
Living Wills: Advance Decision or Directive
You can use an advance decision (also called advance directive) to indicate your wish to refuse all or some forms of medical treatment if you lose mental capacity in the future. You can't use it to request treatment.
A valid advance decision has the same effect as a refusal of treatment by a person with capacity: the treatment cannot lawfully be given - if it were the doctor might face civil liability or criminal prosecution.
Limitations on advance decisions
You can't use an advance decision to:
* ask for your life to be ended
* force doctors to act against their professional judgement
* nominate someone else to decide about treatment on your behalf
As with advance statements, bear in mind that new drugs or treatments may be introduced in the future so you may wish to allow for new treatments even if refusing a current one.
Does an advance decision have to be in writing?
An advance decision doesn't all have to be in writing. However, although witnessed verbal instructions may be respected, it's best to make them known to a senior member of a medical team. A written decision helps to avoid any doubt about what you wish to refuse. In any case, since April 2007 some aspects of advance decisions have to be in writing.
You should sign, date and have witnessed a written advance decision in the same way as for an advance statement.
A written advance decision could form part of a general advance statement, but it is clearest if it sits under a distinct heading, ideally 'Advance decision' or 'Advance directive, refusing treatment'.
Regulation of advance decisions from April 2007
The Mental Capacity Act 2005 came into force in April 2007 and forms the legal basis for advance decisions.
Valid advance decisions
From April 2007, to be valid an advance decision needs to:
* be made by a person who is 18 or over and has the capacity to make it
* specify the treatment to be refused (it can do this in lay terms)
* specify the circumstances in which this refusal would apply
* not have been made under the influence or harassment of anyone else
* not have been modified verbally or in writing since it was made
Refusal of life-sustaining treatment
Advance decisions refusing life-sustaining treatment will need to:
* be in writing (it can be written by a family member, recorded in medical notes by a doctor or on an electronic record)
* be signed and witnessed (it can be signed by someone else at the persons direction - the witness is to confirm the signature not the content of the advance directive)
* include an express statement that the decision stands 'even if life is at risk'
When might an advance decision not be followed?
A doctor might not act on an advance decision if:
* the person has done anything clearly inconsistent with the advance decision which affects its validity (for example, a change in religious faith)
* the current circumstances would not have been anticipated by the person and would have affected their decision (for example, a recent development in treatment that radically changes the outlook for their particular condition)
* it isn't clear about what should happen
* the person has been treated under the Mental Health Act
A doctor can also treat if there is doubt or a dispute about the validity of an advance decision and the case has been referred to the court.
Follow this link for information on Living Wills from Age Concern.
How to make a Living Will
Every adult with mental capacity has the right to agree to or refuse medical treatment. To make your advance wishes clear you can use a living will. Living wills can include general statements about your wishes, which aren't legally binding, and specific refusals of treatment called 'advanced decisions' or 'advance directives'.
General written statements
A general written statement (sometimes called an 'advance statement') can set out which treatments you feel you would or wouldn't like to receive should you lose mental capacity in the future.
Advance statements aren't legally binding, but health professionals do have to take them into account when deciding on a course of action. Family and friends can also use them as evidence of your wishes.
You could also make your views known verbally, for example, when discussing treatment with a health care professional, but having it written down may make things clearer for everyone.
What a statement might include
Your statement could include:
* treatment you would be happy to have, and in what circumstances
* treatment you would want, no matter how ill you are
* treatment you would prefer not to have, and in what circumstances
* someone you would like to be consulted about your treatment at the time a decision needs to be made
It can also include a specific refusal of treatment, which has a different legal status.
If writing an advance statement, bear in mind that new drugs or treatments may be introduced in the future. So you could, for example, state that you would prefer not to receive certain current treatments but would allow for new treatments.
Include your name, address, date and signature in the advance statement. It's also advisable to say you understand what you're doing and are capable of making such decisions. And you may want to get the statement signed by a witness who can say that you had capacity at the time.
Living wills and mental capacity
You can still make a living will if you're diagnosed with a mental illness, as long as you can show that you understand the implications of what you're doing. You need to be competent to make the decision in question, not necessarily to make other decisions.
It's best to put your wishes in writing and explain:
* why you've made your decision about how you do or don't want to be treated
* what you understand about the treatment you're agreeing to or refusing
* why you're making these decisions now
Advance decision - Alzheimer's Society Opens new window
The Mental Capacity Act (disabled people section)
Who needs to know about a living will?
Its important that your living will is entered into your medical notes so that in an emergency it is found and acted upon. Consider sending a copy to your doctor and to any hospital which is treating you and to your nearest relatives. If your living will is verbal, make sure close relatives or friends are aware.
Changing a living will and further advice
Consider reviewing your living will on a regular basis to make sure you're happy with it and particularly if your situation changes.
You can change or cancel it if you are able to think rationally and clearly explain what you want to happen. Ideally, put things in writing and destroy old versions.
You can get help from solicitors specialising in mental health or community care. The Mind Legal Advice line (020 8519 2122, 2.00 pm to 4.30 pm, Mondays, Wednesdays, and Fridays), your care coordinator, doctor or Citizens Advice Bureau can also help.
When there is No Will
If someone dies without making a will, they are said to have died 'intestate'. If this happens, the law sets out who should deal with the deceased's affairs and who should inherit their estate (property, personal possessions and money). This information covers England and Wales only.
Getting expert help from a Solicitor
When someone dies without leaving a will, dealing with their estate can be complicated. It can also take a long time - months or even years in some very complex cases.
If matters are complex or you feel you need help, it's a good idea to consult a solicitor as soon as possible. It's advisable to show them all the information and documentation you have about the deceased person's property, belongings and financial affairs. In the meantime, it may be a good idea to put small valuable items away for safekeeping.
To find a solicitor you can use the search facility on the Law Society's website or call them on 0870 606 6575 (Monday to Friday, 8.30 am to 5.00 pm).
Who can deal with the deceased person's estate?
Usually a close relative like a spouse, child or parent will have the legal right to sort out the estate of the person who has died.
Applying for a Grant of Letters of Administration
In order to be able to administer someone's estate you normally need to apply to the Probate Registry for a 'Grant of Letters of Administration'. You can ask your solicitor to help you with applying for a grant or you can make a personal application.
On receipt of the grant you become the 'administrator' of the estate. The grant provides proof to banks, building societies and other organisations that you have authority to access and distribute funds that were held in the deceased's name. The overall process is often referred to as 'obtaining probate', though technically this term applies where there was a will.
Note that if Inheritance Tax is due on the estate some or all of this must be paid before a grant will be issued. See section below on Probate for further deatils on 'Applying for probate' and 'Valuing an estate for Inheritance Tax'.
When a grant may not be needed
If the deceased's estate is below £5,000, and doesn't contain any land, property or shares, then it may be possible to deal with it without obtaining a grant. Also, a grant might not be needed if the whole of the estate is held in joint names and passes automatically to the surviving joint owner.
Who will inherit the deceased's estate?
If someone dies without a will, there are rules for deciding who inherits the estate. The outcome depends on the deceased's personal circumstances.
For those who were married or in a civil partnership when they died, the first person entitled to the estate is their spouse or civil partner, although they will not necessarily inherit all of it. The amount they would inherit depends on how much is in the estate, and which blood relatives survive.
The rules regarding inheritance changed in February 2009, so now different rules apply depending on whether the deceased person died before or after 1 February 2009.
These rules are complex, but information is available from the Probate Service.
If you were partners but weren't married or civil partners
If you weren't married or registered civil partners, you won't automatically get a share of your partner's estate if they don't make a will.
If they haven't provided for you in some other way, your only option is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 - see the next section.
If you feel you've not received reasonable financial provision
If you feel that you have not received reasonable financial provision from the estate, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. To make a claim you must have a particular type of relationship with the deceased, such as child, spouse, civil partner, dependant or cohabitee.
Bear in mind that if you were living with the deceased as a partner but weren't married or in a civil partnership, you'll need to show that you've been 'maintained either wholly or partly by the deceased' - this can be difficult to prove if you've both contributed to your life together.
You need to make a claim within six months of the date of the grant of letters of administration.
This is quite a complicated area and a claim may not succeed. It's advisable to ask a solicitor's advice. They would charge for this service.
'Probate' is a term commonly used when talking about applying for the right to deal with a deceased person's affairs. It's sometimes called 'administering the estate'. This page contains information about what to expect if a loved one's estate is in probate.
In practice, different terms are used, depending on whether or not the deceased person left a will and where they lived. This information covers probate in England and Wales.
Different Terms Associated with Probate
If the person who has died leaves a will
In this case one or more 'executors' may be named in the will to deal with the person's affairs after their death. The executor applies for a 'grant of probate' from a section of the court knows as the probate registry. The grant is a legal document which confirms that the executor has the authority to deal with the deceased person's assets (property, money and possessions). They can use it to show they have the right to access funds, sort out finances, and collect and share out the deceased person's assets as set out in the will.
If the person who has died didn't leave a will
If there is no will, a close relative of the deceased can apply to the probate registry to deal with the estate. In this case they apply for a 'grant of letters of administration'. If the grant is given, they are known as 'administrators' of the estate. Like the grant of probate, the grant of letters of administration is a legal document which confirms the administrator's authority to deal with the deceased person's assets.
In some cases, for example, where the person who benefits is a child, the law states that more than one person must act as the administrator.
If the person who died lived in Scotland
If the deceased person lived in Scotland you apply for a 'grant of confirmation'.
This is a general term which means executor or administrator.
Grant of representation
This is a general term which includes grants of probate and grants of letters of administration
Is a grant of probate/representation always needed?
When a grant is needed
A grant is almost always needed when the person who dies leaves one or more of the following:
* stocks or shares
* certain insurance policies
* property or land held in their own name or as 'tenants in common'
In most cases above, the bank or relevant institution will need to see the grant before transferring control of the assets. However if the estate is small some organisations, such as insurance companies and building societies, may release the money to you at their discretion.
When a grant may not be needed
A grant of representation may not be needed where:
* the person who died left less than £5,000
* they owned everything jointly with someone else and everything passes automatically to the surviving joint owner
To establish whether the assets can be obtained without a grant, the executor or administrator would need to write to each institution informing them of the death and enclosing a photocopy of the death certificate (and will if there is one).
Probate and Inheritance Tax
The personal representative won't be granted probate until some or all of any Inheritance Tax that is due on the estate has been paid.
Valuing someone's estate for Inheritance Tax
When valuing a deceased person's estate you need to include assets (property, possessions and money) they owned at their death and certain assets they gave away during the seven years before they died. The valuation must accurately reflect what those assets would reasonably fetch in the open market at the date of death.
When do you carry out the valuation?
Valuing the deceased person's estate is one of the first things you need to do as the personal representative. You won't normally be able to take over management of their estate (called 'applying for probate' or sometimes 'applying for a grant of representation/ confirmation') until all or some of any Inheritance Tax that is due has been paid.
But bear in mind that Inheritance Tax is only payable on values above £325,000 for the 2010-2011 tax year.
Key steps in valuing someone's estate
Take the value of all of the assets that they own, together with the value of:
* their share of any assets that they own jointly with someone else: for example a house that they own with their partner
* any assets which are held in a trust, from which they had the right to benefit
* any assets which they had given away, but in which they kept an interest: for instance, if someone gives a house to their children but still lives in it rent-free
* certain assets which they gave away within the last seven years
From the total above deduct everything that the deceased person owed, for example:
* any outstanding mortgages or other loans
* unpaid bills
* funeral expenses
(If the debts exceed the value of the assets owned by the person who has died, the difference cannot be set against the value of trust property included in the estate.)
The value of all of the assets, less the deductible debts, is their estate. The threshold above which the value of estates is taxed at 40 per cent is £325,000 for the 2010-2011 tax year.
Can you use estimates if you don't know the exact value?
If you don't know the exact amount or value of any item, such as an Income Tax refund or household bill, you can use an estimated figure. But rather than guessing at a value, try to work out an estimate based on the information available to you.
You'll find instructions about how to show estimates on the form you complete.
Forms to complete
The forms on which you'll need to record the valuation will differ, depending on the expected valuation amount. You complete a form IHT205 for estates where you don't expect to have to pay Inheritance Tax (called 'excepted estates') and a form IHT400 where you do expect to have to pay. The forms vary for excepted estates in Scotland.
Getting help with the valuation
You should be able to value some of the estate assets quite easily, for example, money in bank accounts or stocks and shares. In other instances, you may need the help of a professional valuer (or chartered surveyor for valuing a property). If you do decide to employ a valuer, make sure you ask them to give you the 'open market value' of the asset. This represents the realistic selling price of an asset, not an insurance value or replacement value.
If the affairs of the estate are complicated, you may want to work with a solicitor to help you value the estate and pay the tax. If you're not using a solicitor you can ask HMRC to use form IHT400 to work out any Inheritance Tax due.
The Probate and Inheritance Tax Helpline offers information. Telephone: 0845 302 0900. Lines are open 9.00 am to 5.00 pm Monday to Friday.