Can you write your own will? Why do I need a will anyway? And how do you apply for probate? Our specialist Wills and Probate lawyers answer all your questions. If you need help or advice about writing a will or dealing with probate, contact us for a free initial consultation.
WILLS
What is a will?
When properly executed, your will determines who receives what from your estate by way of distribution when you pass away. It will also name who shall be responsible for administering your estate, who will care for your children upon your passing and express your wishes in respect of certain arrangements, such as your funeral wishes. It is possible to write your own will but we would always recommend seeking legal advice, as it is easy to make mistakes which may mean your will is invalid.
If I am married or in a civil partnership why do I need a will – doesn’t my spouse or civil partner receive everything anyway?
This is a common misconception. For many couples, this may well be the case but it is entirely dependant on the value of your estate and whether you have any progeny (children, grandchildren or great-grandchildren). If your estate exceeds £250,000, it may be divided between your spouse and progeny, rather than just going to your spouse. A will can ensure that your estate is dealt with in accordance with your wishes and divided as you would want it to be.
Can my executor or witness be my beneficiary?
Your executor can be a beneficiary under your will. A witness cannot also be a beneficiary – this may result in an invalid distribution.
I made a will years ago, do I need a new will?
You may require a new will and it is always best to review your will every 2 – 5 years. Life and circumstances have a habit of changing, as well as tax rules! An older will may not reflect the most tax efficient way of dealing with your estate. If you wrote your own will, you may want have it reviewed by a Wills and Probate lawyer.
I have married for a second time and we both have children. How do we protect assets for our own children while providing for one another at the same time?
Blended families are more and more common. There are options available to you such as the formation of a trust under your will. This can allow your second spouse to live in any property you own until their death (or wilful departure), but also ensure that the property will ultimately go to your children.
I wish to exclude one of my children from my will, can I do this?
You can include or exclude anyone you wish from your will. You will need to consider any potential future claims on your estate depending on how this is distributed. There are ways that you can mitigate any potential claims and so legal advice is advisable, even if you are considering writing your own will. Will validity is all the more important for this reason.
My executor has died, do I need a new will?
You can have a codicil prepared naming new executors. Our advice is to have your will checked regularly and be sure you are still happy with the people to whom you have allocated this important role.
I have a will but have since got married, do I need a new will?
Firstly, congratulations!
Secondly, your marriage will have had the effect of automatically revoking your will unless it was made ‘in anticipation of’ your marriage. For this reason, a new will should be prepared for both yourself and your new spouse.
I am divorced do I need to make a new will?
Divorce does not revoke your will but any clauses which your ex-partner are named in will be treated as though that ex-partner has predeceased you. A new will should be considered whist you are going through the divorce process to protect your assets.
I wrote my own will, is it valid?
It could be, yes. BUT … if you write your own will, by the time any mistakes come to light it will be too late for you to rectify any problems as you will no longer be with us!
The effect of an invalid will could be that the people or charities you have provided for may not benefit, despite your wishes. If you wish to ensure your will is valid, obtaining legal advice is a pretty sensible starting point and doesn’t have to cost the earth.
PROBATE
What is probate?
Probate is the entire process of dealing with a deceased person’s estate. This generally involves settling the deceased person’s debts and distribution of their assets in accordance with their wishes (expressed in a will) or subject to intestacy rules (where there is no will and the person dies intestate).
My partner and I own everything jointly, will we need to apply for a grant of probate?
If you own everything jointly (beneficial joint tenants), a ‘grant of probate’ (where you have a will) or ‘letters of administration’ (where you do not have a will) may not be required when one of you dies due to the rules on survivorship. It will be required when the remaining partner dies.
You may still have to file relevant inheritance tax forms.
How do I apply for probate?
Assets and Liabilities of the deceased person needs to be established, this will show whether there is inheritance tax to be paid. Tax forms need to be completed and sent to HMRC for confirmation and a probate application is made with the Probate Registry. Read our article about the pitfalls of ‘diy’ probate.
My father had a will but we can only find a copy, can this be used to apply for probate?
A copy may be admissible but there are certain hurdles that your executors may face. One such hurdle may be the need to obtain affidavits (sworn statements) from the witnesses of the will for example. Ideally, this situation should be avoided as much as possible. Our clients have the comfort of knowing that every will drafted by our firm will be kept safely and securely in our archive for the rest of their life.
I don’t understand the tax forms, can I get probate without completing them?
Tax forms are required by HMRC and a grant or probate or letters of administration will not be issued until such forms are completed and filed.
My sibling and I are both appointed as executors but we do not get on. How do we apply for probate?
We unsurprisingly see executors battling against one another following the death of a loved one. Stresses are high anyway, let alone dealing with someone that you may not agree with. The reality is that executors must work together to obtain an application and distribute an estate. without collaboration, the job will be very time consuming and difficult to manage. An executor has the option of resigning, but this will leave them with no control over the estate going forward. We are regularly appointed as ‘professional executors’ within a will for this reason. It give the person confidence that their estate will be professionally managed following their death, without a risk of emotional interference.
The executor named in the will has died, there are no other executors. Who applies for the grant of probate?
It is always good to name a back up within your will but if this is not the case, it will usually fall to one or more of the residuary beneficiaries. This can sometimes cause complications when making an application for probate and so legal advice when drafting your will is advised.
My application for grant of probate has been rejected, what do I do now?
If you have made errors, either a new application will need to be made or an amended application to rectify the errors may be required. Making errors will run the risk of causing delay to the grant of probate, meaning this will delay the distribution of the estate to beneficiaries.
What are nil rate bands for inheritance tax?
A nil rate band is the value of your estate which can be distributed to a beneficiary without incurring inheritance tax. The nil rate band is currently £325,000. If the person does not use this entitlement, it can be ‘transferred’ to your spouse or civil partner when you die. There are certain rules on how the estate is calculated for this purpose.
I am giving my estate to charity, will my executor need to apply for grant of probate?
Grant of probate is likely to be required in order to encash assets and/or sell a property in order to pass any gifts to charitable beneficiaries.
Our Wills and Probate lawyers can help.
Writing a will or dealing with probate can be much more complicated than expected. Our experienced Wills and Probate lawyers are experts at helping you to identify all of your assets and decide how you would like to distribute them. We also offer a flexible probate service and can handle as much or as little of the process as you require.
Contact us to arrange a free initial consultation. If you appoint us to act on your behalf, your named Wills and Probate lawyer will support your case from start to finish, and a member of the team will always be available to speak to on a day-to-day basis.
Helpful free guides on matters relating to wills, probate and trusts are also available from the UK Care Guide website.
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