Will and Testament Facts
Without a valid Will you cannot control who will inherit your property after your death. Should you die intestate (without a Will), your property will be distributed according to law, which is likely to be inconsistent with your personal wishes.
In some cases your estate may go to the Crown instead of the people you want to benefit. By making a Will you can determine precisely who will inherit your property and let your loved ones know that you have considered their needs. Equally important, you can determine who will administer your estate and who will act as guardian for any minor children you have if they are left without a surviving parent.
You can also use your Will to express your preferences for burial or cremation. In addition, making a Will gives you the opportunity of reducing your Inheritance Tax liability. This is particularly important if you have substantial assets. When you die leaving a valid Will that appoints one or two executors who are still living at the time of your death, legal ownership of all of your property passes automatically to those executors. In order to prove that they have the right to deal with your property, they must apply for a legal document confirming their right to do so from the Probate Registry.
This process is called ‘obtaining probate’. In Scotland, executors are appointed either by you in your Will (called ‘executors nominate’), or by the Sheriff Court (‘executors dative’). Before your executors can ‘uplift’ (secure the release of) and deal with your assets they must normally obtain ‘confirmation’. Confirmation is granted by the Sheriff, and gives your executors authority to administer the estate.
If you die without making a Will, or if your Will is invalid, you die ‘intestate’. The management of your estate is then placed in the hands of administrators who are appointed by the court and who are likely to be close members of your family. The administrators distribute your estate according to the rules of intestacy.
In Scotland, administrators appointed by the court in intestacies are still referred to as executors. The rules are complex, but broadly speaking the bulk of your estate will go to your spouse (including a registered civil partner) or, if none, to your children (whether or not they are adults) and, if none, to other blood relatives.
The effect of the rules depends partly on the size of your estate. If your estate is large (for England and Wales currently more than £250,000 where there are children – even if they are adults – and £450,000 where there are none), less than you expect may go to your spouse. So it is always prudent to have a valid Will rather than rely on the intestacy rules. In Scotland if there is no Will, the spouse is entitled to the house up to the value of £300,000 and contents up to £24,000.
If there are no children, then the spouse can take £75,000 of the moveable estate and if there are children, then £42,000 of the moveable estate. It is also possible to die partially intestate. This occurs if you fail to deal with all of your property in your Will or if a particular beneficiary dies before you.
Every adult can and should make a Will. Minors (i.e. those under 18) generally cannot make a Will as they are not deemed competent. In Scotland, the minimum age for making a Will is 12. In Northern Ireland, a married minor or a minor who has been married may also make a valid Will. ‘Testator’ is the word for someone who written a Will.
The only qualifications necessary are that you are of legal age and of sound mind. If there is a history of mental disorder or if an illness may be affecting your judgement in any way, you should consult a qualified doctor just before preparing your Will. This will help establish your competence and will be useful should your Will be contested later on the grounds of mental incapacity. If you are married, both you and your spouse should prepare Wills. This is true even if marital assets are primarily in the name of one spouse.Usually you will wish to name your spouse as your main beneficiary and include an alternative gift to take effect if he or she predeceases you.
The same applies to registered civil partners. If you are not married but are living with someone and you want that person to benefit from your estate, it is particularly important to make a Will. This is because the rules of intestacy make no provision for unmarried partners (other than registered civil partners). If you were to die intestate, your partner would receive nothing from your estate. In Scotland, the Family Law (Scotland) Act 2006 allows the cohabitant partner of a person who dies intestate to apply to the court for payment out of the deceased’s net estate of a capital sum, or for the transfer to the surviving cohabitant of the deceased’s property, which can include a house.
The court has to take into account the size and nature of the deceased’s net intestate estate, any benefit being received by the surviving cohabitant on, or as a consequence of, the deceased’s death (e.g. being paid out from a life policy), any benefits received other than from the deceased’s net intestate estate and the nature and extent of any other claims on the deceased’s estate, for example, from children.
The maximum the court can award is the same as the cohabitant would have received if he had been married to or was a civil partner of the deceased. Any award made by the court is at its discretion; so if you want to ensure that your unmarried partner is provided for, it would be best to make a Will.
Once prepared, your Will is valid until revoked, which may occur in one of five ways:
1. By destruction, combined with the intention to revoke.
2. By making a new Will that revokes the old Will. The Lawpack Will Forms all contain the phrase ‘I revoke all previous wills and codicils’ in order to do this and will revoke any previous Will you have made.
3. By marriage or remarriage, unless your Will expressly states that it is made in contemplation of that forthcoming marriage. Note the important difference in Scotland, where marriage or remarriage does not revoke a Will.
4. By entering into a registered civil partnership, unless your Will expressly states that it is made in contemplation of that forthcoming registered civil partnership.
5. In Scotland only, there is a legal presumption that your Will is revoked if you have a child after having made your Will, where the Will makes no provision for that child.
The law presumes that you would wish to provide for your child in your Will, and therefore if no mention of the child is made in your Will, the law presumes (a presumption difficult to argue against) that because the child is disadvantaged by not being provided for, the Will is revoked. The presumption will not apply if even the smallest provision is made in the Will for children yet to be born.
The presumption can only be overturned if there is sufficient evidence that the testator, in fact, intended to exclude children not yet born. Except in one of the above circumstances, your Will remains valid for an unlimited period of time. Note that a divorce does not revoke a Will.
You may need to revise your Will for any number of reasons. Common occasions for reviewing a Will include:
• Changes in the family – a baby is born; a child becomes 18 (or perhaps some significant later age); or there is a death.
• Marriage – in England & Wales and Northern Ireland, marriage automatically revokes a previous Will, unless your Will expressly states that it is made in contemplation of that forthcoming marriage. It is always safer to prepare a new Will upon marrying. In Scotland, marriage or civil partnership does not revoke a Will, but you may well wish to make a new Will to provide for your new family.
• Civil partnership – registering a civil partnership has the same effect as marriage. • Divorce– unlike marriage, a divorce does not revoke a previous Will. But if your former spouse is named as a beneficiary, then upon divorce he or she will cease to be a beneficiary or receive a gift unless your Will expressly provides that the gift should still take effect if you divorce.
If your former spouse is named executor, then upon divorce he or she will no longer be allowed to act as executor or obtain probate of your Will. It is best to make a new Will whenever you get divorced. In Scotland, if your former spouse is named as a beneficiary or as an executor he or she will continue to be a beneficiary/executor after divorce, unless the Will makes it clear that he or she is only to benefit/act as executor in his or her capacity as spouse, in which case if he or she ceases to be a spouse he or she would cease to be executor/beneficiary.
For this reason, great care must be taken when using the words ‘husband’ or ‘wife’ in a Will, because when used alone, the word will ‘speak from your death’, which means the gift will go to whomever is your husband or wife at the time of your death. In this case, an earlier spouse would lose his or her gift to a later spouse, possibly contrary to your intention. For the avoidance of doubt, always identify your spouse by name when making your Will, e.g. ‘my wife, Gillian’, and draw up a new Will on separation or divorce. Divorce is a complex issue and we recommend you consult a solicitor if in doubt.
• Dissolution of a civil partnership – the dissolution of a civil partnership has the same effect as a divorce.
• Separation – does not have the effect on a Will which a divorce has, so it is best to review the Will as soon as separation occurs.
• Change in financial circumstances – you may have recently acquired assets which you would like to give to particular beneficiaries, or perhaps due to hard times your estate may have become insufficient to provide for the legacies you have made.
• Changes in taxation – if your estate is large enough (or becomes large enough) to attract tax, new taxes or reliefs or changes in the rates may call for changes in your Will.
• Going to live abroad – it is normally desirable to make a Will in the country where you reside to simplify the administration of your estate. It may also be helpful if you need to establish a change of domicile.
Local advice should be sought. In any case, it is a good idea to review your Will at least every year, so that it is always up to date.