What is a Last Will & Testament?

Key functions of a Will:

1. Distribution of assets. A will allows the testator to name beneficiaries and specify exactly how their estate is to be divided. This may include:

Specific gifts (e.g jewellery, cars, or heirlooms).
Cash legacies to individuals or charities.
Residuary estate (how the remainder of their estate is divided).

2. Appointment of executors. Executors are representatives responsible for administering the estate. Their duties may include:

Obtaining a Grant of Probate (if required).
Identifying and valuing assets, debts, and liabilities.
Settling debts, taxes, and funeral costs.
Distributing the estate following the instructions within the will.

Always check whether proposed executors are suitable. Multiple executors can be appointed (maximum of four acting), and back ups should be considered.

When there is a minor beneficiary, a minimum of 2 executors must be appointed to protect their interests.

3. Appointment of guardians. A will allows the testator to nominate legal guardians for minor children. This avoids the risk of social services or the courts deciding guardianship if no one is appointed.

The guardian appointment only takes effect if there is no one else with parental responsibility at the time of death.

4. Funeral wishes (non-binding). A will may include guidance on funeral preferences. This may include:

Burial vs cremation.
Guidance on location, preferences, music, readings, etc.

Funeral wishes within a Will are not legally binding, but are often followed. These wishes should also be communicated with loved ones, as the will may not be read until after arrangements have been made.

5. Alternative provisions. A will can include fallback provisions to ensure the estate is distributed appropriately even if unexpected circumstances arise. This may include:

Disaster clause: Specifies who should inherit the estate if all the primary beneficiaries die before or at the same time as the testator.
Gift over clause: Specifies who should inherit a gift if the intended benificiary has predeceased the testator, often directing the gift down their bloodline, for example, to their children.

Always include a disaster clause as best practice, especially where the testator's entire estate is passing to a spouse and/or children.

6. Disinheriting Individuals. A will allows the testator to exclude specific individuals from receiving any part of their estate. This may include:

Explicitly excluding and omitting someone from the will.
Taking steps to reduce the likelihood of a successful claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Including a Letter of Non-Inheritance (LONI) to accompany the will explaining the exclusion.

Always document the rationale behind an exclusion and inform the clients of the risk of certain people being allowed to make a claim.

7. Basic tax planning. A will can be structured to minimise Inheritance Tax (IHT) liability. This may include:

Planning for the Residence Nil-Rate Band (RNRB), the Transferable Nil-Rate Band (TNRB), or the Transferable Residence Nil-Rate Band (TRNRB) where possible.
Tax-free gifts to charities or a spouse to reduce the value of an estate below tax thresholds. Leaving 10% of an estate to charity reduces any IHT due from 40% to 36%.

8. Creation of will trusts. A will can create a range of trusts, either automatically or as optional planning tools. This may include:

Statutory trusts for children under 18.
Discretionary trusts.
Right to Occupy trusts.
Property Protection trusts.
Vulnerable Person or Disability trusts.
Business Property Relief trusts.

Types of Will

Single Will. A will for one person.
Joint or Mirrored Wills. Typically used by couples who want nearly identical wills.
Mutual Wills. Less common wills that cannot be changed without agreement.
Codicils. Amendments that are attached to existing wills.

We do not offer mutual wills or codicils.

Mutual wills are too restrictive and problematic, especially after the death of a testator.
Codicils are messy, can cause confusion, and can even be misplaced or lost. It is much safer to rewrite the will.

Who can make a Will?

Anyone over the age of 18 with testamentary capacity can make a valid will.

Testamentary capacity refers to the mental capacity and understanding required for an individual to make a valid will. To have testamentary capacity, an individual must:

Understand the purpose and effect of a will.
Understand the extent of their property and assets.
Understand who should be catered for in their Will, such as minor children or dependent partners.
Be of sound mind, able to make decisions based on their own wishes and preferences, and free of any external influence or coercion.

A lack of testamentary capacity can be used to contest the validity of a will in the future.

Anyone in active military service may make a will when they are under the age of 18. This is also known as a Privileged Will.

What makes a Will valid?

In the UK, wills are primarily governed by the Wills Act 1837, which outlines the legal requirements for creating a valid will. A will is valid as long as:

The testator is over the age of 18 and has testamentary capacity.
It is in writing.
It has been signed by the testator in the presence of 2 independent witnesses.
Those 2 witnesses have also signed to confirm the testator's signature.

If an individual is unable to sign a will, they may instruct someone else to sign on their behalf.

What happens without a Will?

If someone dies without a valid will, also known as dying intestate, their estate will be distributed according to the Rules of Intestacy. These rules may exclude individuals they would have wanted to inherit and may even direct assets to individuals they did not wish to benefit.

It is also possible for a partial intestacy to occur, meaning a valid will exists, but it does not cover all of their assets. Assets not covered by the will are also subject to the Rules of Intestacy.

What can't be included in a Will?

A Will allows you to outline your wishes for the distribution of your assets, but there are certain limitations on what you can include in a will. For example:

Jointly-owned assets: Assets with joint ownership, such as joint bank accounts, typically pass to the surviving owner and cannot be disposed of within a will.
Assets in trust: Assets held in a trust are managed and distributed by the terms of the trust agreement and are not typically included in a will. Trusts tend to offer more flexibility and security than a will.
Assets they don't own: Whilst it might seem obvious, assets that are not owned by the testator, such as loaned or rented assets, cannot be included within a will.
Gifts to pets: Gifts can't be left directly to pets, but someone can be named to care for them. Money can then be left to the carer to assist with their new role.
Life insurance policies: If a life insurance policy has a named beneficiary, it will not be included within the estate as it goes directly to the nominated beneficiary.
Instructions on what to do with inherited assets: This is known as ruling from the grave, and once a beneficiary receives their inheritance, they can do as they please with it, even if it is against the testator's wishes.