Do I need a Will?
It is very important that you make a will, even if you don’t think that you have much money or many possessions.
If you die without making a will, known as ‘dying intestate’, it can become complicated for the people that you leave behind to carry out your wishes. By making a will you can make sure your wishes are carried out such as your funeral arrangements and how you would like your money and possessions to be distributed.
Why should I make a Will?
If you die without making a will it can cause problems for the people you leave behind.
- There are rules that dictate how your money, property and possessions will be shared out amongst your relatives.This may not be done in the way that you wanted.
- Unmarried partners and same-sex couples who are not registered as civil partners can’t inherit from each other unless there is a will. If you die without making a will, your partner may be left with serious financial problems.
- If there is no will, this could cause disagreements between family members when money and possessions are distributed.
Making your own Will
You don’t have to use a solicitor to make your will, but unless you are familiar with legal terms and requirements, it is easy to make a mistake. This could cause problems for your beneficiaries, or result in your wishes not being carried out. If you do decide to write your own will, you can purchase pre-printed forms from stationery shops.
It is a good idea to ask someone to check the will after you have written it. Citizens Advice Newcastle (CAN) may be able to help you with this.
A Living Will consists of both an Advance Decision whether to refuse treatment and an Advance Statement of your preferences and wishes. They can be made separately, or they can be linked together.
Advance statements express your wishes and preferences to help people make decisions in your best interests were you to lose mental capacity. It can include matters such as how and where you want to be cared for, your eating habits and concerns around your personal care. It is not a legal document and there is no formal document or layout to follow when making an advance statement.
An advanced decision allows you to say now what medical treatments you might want to refuse should you lose the ability to make decisions for yourself in the future. An Advance Decision is legally binding and, as long as it is validly made, the health care professionals treating you must follow your wishes.
My Living Will is a website that can help you prepare your advance statement and advanced decisions online.
Using a solicitor
The cost of making a Will through a solicitor varies according to its content and complexity. Wills usually cost £150 – £300 for individuals or £200 – £600 for couples. Wills usually cost more if they are complicated. You should ensure that you get confirmation of the cost before you agree to go ahead. You may already have a solicitor that you trust, but if not you could contact:
Solicitors for the Elderly is an independent, national organisation of lawyers, such as solicitors, barristers, and legal executives who provide specialist legal advice for older and vulnerable people, their families and carers. They have an online search facility so you can find legal advice in your area.
Some solicitors will make home visits, but these can incur significant extra costs to cover their time and travel.
Money Advice Service have more information on using a solicitor to write your will.
Probate is an official form that gives the executors of a Will the right to deal with the assets and property of the person who has died. You will need to apply for a probate form if you are dealing with bank accounts, insurance policies or property. If the person who had died did not leave a Will, you can apply for ‘letters of administration’, which serve the same purpose as probate.
For more information on applying for probate, visit www.gov.uk.
You may also like to read Age UK’s factsheet Dealing with an estate for further information.
Inheritance Tax (IHT) is a tax that may have to be paid on any estate valued at over £325,000 when a person dies. A person’s estate is all of their assets and property, including houses, cars, investments, money and belongings. Inheritance Tax is currently charged at a rate of 40% on the amount over the £325,000 threshold.
Please visit the Information Now Tax article for more details.
Money Advice Service provide more information on Inheritance Tax.
Disputing a will
English law has always recognised the freedom of individuals to dispose of assets in their will as they would like to. However, sometimes there may be doubt about the validity of the will or a dispute, because a potential beneficiary believes he or she should have been included in the will.
If someone dies intestate (without making a will) then it could be that a person who should benefit from the deceased’s estate is not automatically recognised as a beneficiary under the intestacy rules. The statutory legacy for a spouse or civil partner is £250,000 where the deceased has surviving children. If there are no children, the spouse or civil partner will receive up to £450,000.
GOV.UK have produced a helpful tool to help you work out who inherits if someone dies without a will.
Legally, if fair provision is not made under a will or on intestacy, certain people can claim against the estate of someone who has died. The Inheritance (Provision for Family and Dependants) Act 1975 enables a person to apply to become a beneficiary, or a greater beneficiary, of the estate of the deceased. The object of the Act is to allow the redistribution of the estate because either the will, or the intestacy rules, do not make reasonable financial provision for the applicant.
To qualify under the 1975 Act, the deceased must have been living in England and Wales at the time of death and:
- you must be either the husband, wife or civil partner of the deceased;
- you could be a former spouse or civil partner who has not remarried or entered into a civil partnership;
- you cohabited with the deceased in the two years prior to his or her death;
- you might be a child of the deceased;
- you might have been treated by the deceased as a child of the family; or
- you may be someone who immediately before the death of the deceased was being maintained either wholly or partly by him or her.
The claim must be brought within six months of the grant of probate or letters of administration which allows the estate to be distributed. The Court does have the power to extend this time limit in certain circumstances.
If you would like further information or explanation about this matter, as a first step you will need to contact a specialist Solicitor who will advise you on the merits of a possible claim.
Other Useful Information
- Making a will – Age UK guide
- Making a will – Money Advice Service
- LifeBook – Age UK free resource. It can be easy to mislay important documents and information. Record your details from, who insures your car, to where you put the TV licence. The LifeBook can help you to be more organised and could be invaluable to a family member or a friend if they need to locate important information about you in an emergency. Follow the step-by-step instructions and fill in the sections with your details, contacts and locations of important documents. Complete it online or order one.
The information on this website is for general guidance on your rights and responsibilities and is not legal advice. If you need more details on your rights, or legal advice about what action to take, please contact an adviser or solicitor.
Last updated: July 9, 2020