Advice when Making a Will

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 the family, friends and organisations that mean the most to you exactly as you would wish.

If you die without a will then your next of kin will need to file for ‘Letters of Administration’ and your assets may be distributed contrary to how you would have wished.

Why it’s important to make a will

A will sets out what will happen to your property and possessions (together, 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 then all assets will pass to your next of kin and if none can be located then your estate becomes property of the state
* if you are in a partnership not formalised by marriage or civil partnership then you can ensure your partner is provided for under your will
* you can express any funeral wishes
* you can provide for any children or pets you have
* if you’re divorced or your civil partnership has dissolved you can decide whether to leave anything to your former partner
* you can structure your estate with tax efficiency in mind, you don’t pay more Inheritance Tax than necessary

Preparing your will

Although it is possible to write a will by yourself, (click [here] for an article on the stages of doing so) 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 benefit from professional advice on how to structure your estate within your will or on steps you can take prior to your death to minimise the level of Inheritance Tax that will be payable.
Most solicitors can arrange formal appointments at their office or visit you in hospital, at home or in a care home as is necessary.

How Much does it cost to make a will with a solicitor?

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. It is advisable to obtain several quotes from different firms before instructing one.

As well as solicitors, voluntary organisations such as the Citizens Advice Bureau and Age Concern can also help with your will. Relatively inexpensive so-called ‘Will Kits’ can be purchased from W H Smith or the Post Office. Most large charities also offer a free will writing service if you are willing to leave a gift to them in 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 to be included in your will. You should consider:

• Making a list of all of your assets, such as: property, family heirlooms, bank accounts, ISAs, stocks and shares. Even your beloved pet is considered to be ‘property’ by law, and their future care can be covered in your will.
• who you want to benefit from your will (often referred to as ‘Beneficiaries’).
• who should look after any children under 18 years of age
• who is going to administer your estate and carry out your wishes after your death (your ‘Executor(s)’).

An executor is a person responsible for passing on your estate, and they are appointed by being named in your will. The courts can also appoint other people to be responsible for doing this if it is appropriate for them to do so. We have written in detail about the topic of an executor also being a beneficiary of your will and the rules surrounding that.

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(s), close friends, or relatives where it is.
If a solicitor makes your will, they will normally keep the original, usually at no additional cost, and send you a copy for your records. You can ask for the original if you wish to hold it, but if being kept at home it is advisable to store it in a fireproof box or safe.

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 married or entering a civil partnership, getting divorced or dissolving a civil partnership, having a child, moving countries or if one of your executors or Beneficiaries passes away.

Depending on the significance of the change, this could be made by a further document called a ‘codicil’ (an addition, amendment, or supplement to a will) or if appropriate, making a new will within which you will renounce your previous will(s).

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
Citizens Advice Bureau in Scotland

Living Wills: Advance Decision or Statement

You can use an advance decision (also called an advance directive) to indicate your wish to refuse all or some forms of medical treatment if you lose mental capacity or become unable to communicate your wishes in the future. You cannot 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 judgment
* nominate someone else to decide about treatment on your behalf – for this you would need to grant this person Power of Attorney

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?

If it is not refusing life sustaining treatment, 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 (as amended) 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, witnessed and dated (it can be signed by someone else at the person’s 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 is not clear about what should happen
* the person has been treated under the Mental Health Act (as amended)

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 healthcare 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 medicine will continue advancing, so new 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
The Mental Capacity Act (disabled people section)

Who needs to know about a living will?

It’s 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 (0300 466 6463, 9am – 6pm, Mondays – Fridays, excluding bank holidays) or the 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, then as mentioned above your next of kin will need to file for ‘Letters of Administration’ before administering your 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 several months or even years in some very complex cases.

If the assets of the deceased are complicated 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 Find a Solicitor search facility on the Law Society’s website or call them on 020 7242 1222.

Who can deal with the deceased person’s estate?

Usually the next of kin (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 the 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 the section below on Probate for further details 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. A grant might also not be needed if the assets that make up 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 – see our guide to bloodline wills.

The Inheritance and Trustees’ Powers Act 2014, which came into force on 1 October 2014, made amendments to the intestacy rules where the deceased left a surviving spouse or civil partner. For deaths on or after 1 October 2014, If the deceased was survived by a spouse or civil partner they will take either:

• The personal chattels, a fixed net sum (statutory legacy) and an absolute interest in one half of the residue of the assets. If there is a surviving child or children then they take the other half share on a statutory trust; or
• The whole estate passing on intestacy if the deceased has no children.
  
  If there is no surviving spouse or civil partner but the deceased had children then the estate would be distributed between them.
  
  If the deceased had no surviving spouse or civil partner or children then the estate would be distributed amongst any other relatives of the deceased.
  
  If the deceased had no surviving spouse or civil partner or children and no wider family then the estate will pass to the Crown as what is referred to as ‘Bona Vacantia’. However, all is not lost at this point as any eligible relative can submit a claim to the Bona Vacantia division of the government within 30 years of the date of death.
  
  This long deadline for claiming estates is why you very often see genealogists and private companies attempting to trace entitled relatives in return for a portion of the estate.

These rules are complex, but the information is available from the Probate Service and the Government website.

If you were partners but weren’t married or civil partners

If you and the deceased 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 then it is advisable to seek legal advice. Unmarried and cohabiting partners have the legal right to claim against their partner’s estate if they’ve been cohabiting for more than two years. 

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 financially ‘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, who would of course charge for this service.