Making a Will
A will is a document that sets out what should happen to your property and possessions after your death. Whilst you don't have to have a will, it is the simplest way of ensuring your wishes are carried out.
This section will help you understand the following:
What is a will?
A will sets out what will happen to your estate (your property and possessions) after your death. Making a will ensures that you control what happens to your estate. Without a will, the law applies a set of standard rules to your estate - and there may be differences in what the law says and what you would prefer to happen (e.g. in respect of unmarried couples or divorcees).
You can make a will yourself or buy an over the counter will-writing kit. Neither option is as secure as using a solicitor.
How to make a will
The specific details of your will are for you to decide (in discussion with your family and/or solicitor if you wish) but the details would usually include the following:
- Who should look after your estate and ensure your wishes are carried out after your death - the executor
- What property, possessions and money you have
- How they will be divided amongst those you wish to benefit from your will
- What will happen to any children under the age of 18
You can also give instructions about the type of funeral you would prefer. A solicitor will be able to help and advise you in making your will. S/he will often be able to visit you at your home and will ensure that the will you create is legal - which may not be the case if you choose to write the will yourself. Solicitors will explain their fees in advance, will keep the will on your behalf and, if you wish, will act as executor.
What happens when there is no will?
If someone dies without making a will they die ‘intestate’. In these cases the law decides who should deal with their estate and who is entitled to what.
Dealing with the estate of someone who has died intestate can be complex and can take time. The laws of intestacy also mean that the people entitled to your estate may not be the same people you would have selected if you had written a will. It’s for this reason that making a will is always preferable.
Who can deal with a person’s estate?
A close relative (e.g. spouse) will usually have responsibility for managing the estate of the person who has died.
Unless the total value of the whole estate is less than £5,000, or is in joint names, the relative should apply to the Probate Registry for a 'Grant of Letters of Administration'.
A solicitor will be able to help with this process (see below for a list of local solicitors).
On receipt of the grant the relative becomes the ‘administrator’ of the estate who will then have the authority to divide the estate according to rules established by the Probate Service.
You can read the criteria here: intestacy rules
What if I think I’ve not received a fair amount?
The rules of intestacy can lead to outcomes that neither the deceased nor their surviving family may have intended or expected. Partners who are neither married nor registered as civil partners, for example, are not automatically entitled to anything from the estate. In such circumstances you would need to make a claim (within 6 months of the grant of letters of administration) under the Inheritance (Provision for Family and Dependants Act) 1975.
Wills in Scotland
There are a number of key differences (aside from differences in terminology) between wills made in respect of people living in Scotland and wills in the rest of the UK.
- Witnesses can inherit from a will (although it remains advisable for anyone likely to benefit from a will not to witness it to avoid the possibility of the will being challenged)
- Your will is not automatically revoked when you get married, remarry or enter into a civil partnership
- Anyone over the age of 12 can create a will
- Spouses, children and other descendants have a right to claim a fixed share of “movable assets” (i.e. everything except property) - no matter what the will says.
- If you have a child after creating the will and have not covered that possibility within the will itself, the will may be invalidated.
Intestacy rules (the rules that govern what happens if you die without leaving a will) differ to those in the rest of the UK. Your surviving partner may not be entitled to the whole of your estate.
As with wills throughout the rest of the UK it is advisable to use a solicitor to ensure your will has legal effect and does what you want it to.