Wills & Probate - Frequently Asked Questions

In Drafting a will

It’s natural to have a lot of questions about wills – after all, it’s one of the most important legal documents you can make. Here are our top frequently asked questions around getting a will.
 

What is a will?

A will is a legal document setting out what happens to your money, property, and possessions after you die.
For a will to be valid, it must be made in writing, clearly marked as a will, and signed by you and two witnesses.
 

Who can make a will?

Anyone over the age of 18 can make a will, so long as they have the mental capacity to understand what they’re doing.

You’ve probably heard the phrase, ‘of sound mind and body’ – and that’s what this means. It stops people taking advantage of others. You can make a will for someone who lacks mental capacity, provided you’ve been made a deputy by the Court of Protection.
 

Why do I need a will?

Your will puts you in control and guarantees peace of mind.

Your last wishes can provide security for your family, making sure your partner has a home or that your children will be properly looked after if the worst happens. It also means you could disinherit someone who would typically benefit from your estate if you didn’t have a will. If you own your own house, writing a will can help you lower or any inheritance tax your family may have to pay.

By writing a will, you’ll also help prevent any lengthy and stressful probate process, too.
 

I don’t have anything of value – do I really need a will?

It’s easy to believe there’s no need for a will if you don’t own your home or have a lot of savings. But what about the items that are dear to your heart or the ones you’d like to leave for family members and loved ones? What about anything that you do acquire in the future? A will is a plan for the future – your final wishes for after you’ve gone, and should cover everything of both financial and sentimental value.
 

Are there different types of wills?

There are two main types: an individual will and joint wills.

In most cases, you’ll choose an individual will, which clearly (and legally) sets out how your estate should be administered after you pass away.

There are two types of joint wills: mutual wills and mirror wills, although mutual wills are much rarer, as they can’t be altered after one partner dies. A solicitor or will-writer will advise you on the best option for your circumstances.

Joint wills are usually written by couples with similar wishes. These tend to benefit the other person in a relationship, stating that in the event of your death, everything you own goes to your partner, and if you’re the surviving partner, everything goes to your children.

You don’t need to be in a relationship to write a joint will. Your beneficiary could be a trusted relative or friend.
 

How much does a will cost?

A will can cost anywhere between £100 and £600.

However, prices for wills vary – it all depends on who’s writing it and how complex your estate is. If you own foreign property, have a lot of money, or many intended beneficiaries, for example, this could see the cost rise.
 

When should I write or change my will?

If you don’t already have a will, the sooner the better.

You should make a new will whenever your life circumstances change. For instance, when you move to a new house, get married or divorced, or have children. You can change or update the document at any time, either by writing a new will or adding a codicil.

A codicil is an attachment that sets out the new wishes or amends existing details – it’s the legal equivalent of popping a note in the margins. This could be used to update your home address or even include a new beneficiary.

However, if you add too many codicils, think about writing a new will, as the more attachments you add, the more likely it is that they may get lost or misinterpreted.  
 

Can I write my own will?

You can make a will on your own, which is known as a DIY will.

These can be bought on the high street or written from scratch, but it’s not usually recommended. As a legal document, one wrong word or missing detail could throw the entire will into dispute.

It’s completely inadvisable to write your own will if your estate is large and complex.
 

Should I use a solicitor or will-writer?

Solicitors and will-writers both offer will-writing services.

Cost and services are the main differences.

Will-writers tend to be cheaper, but they’re limited in what they can legally provide. Unlike a solicitor, for instance, they can’t help you grant Power of Attorney and are best suited to simple estates, rather than large or complex ones.

All will-writers on The Law Superstore are members of the regulatory Institute of Professional Will-Writers.
 

Do wills include Power of Attorney?

Granting Power of Attorney lets you choose someone to control your finances and take care of your medical needs if you become incapacitated and unable to care for yourself. This document needs to be written before you’re incapacitated.

Many believe that the act of writing a will instantly grants Power of Attorney to their partner or another beneficiary. This is not the case.

A Power of Attorney document is separate from a will, so if you’re writing or updating your will with a solicitor, it’s a good idea to write this document at the same time.

Find out more about the different types of Power of Attorney in our guide.
 

What should be included in a will?

Everything you own should be included in your will – from your house and savings to those knick-knacks you keep for sentimental reasons. Before starting a will, create a list of all the things you want to pass on to others.
If you have children under the age of 18, use your will to state who looks after them if both parents die.

Your will should also include the names of two to four executors, who will carry out your final wishes, and the document must be signed, dated, and include the addresses of two witnesses.
 

Who can benefit from my will?

You can choose almost anyone to inherit from your will. These people are known as ‘beneficiaries’.

This will usually include your partner, children, other relatives, and friends. You can also gift inheritance to charities and organisations. Doing so may help reduce any tax due on your estate, and a solicitor will be able to advise on this.
 

What happens if one of my beneficiaries dies before me?

If you’ve included a beneficiary that passes away, whatever was intended for them returns to your estate to be divided up amongst the other inheritors.
 

What is an executor of a will and what do they do?

The executors are the people who carry out your final wishes according to the will. Think of them as the managers of your will.

Name at least two executors (and a maximum of four). That way, if one of them dies, your estate can still be administered. Choose your executors carefully – they should be over 18, trusted, and ‘of sound mind’. Remember to ask them if they’ll agree to execute the contents of the will before including them.

Despite misconceptions, an executor can also be named as a beneficiary in your will.
 

Why do I need two witnesses to sign my will?

Witnesses act as a basic form of fraud prevention. If a will isn’t witnessed, it isn’t valid, and that’s as good as having no will at all.

A witness is there to make sure the will is really yours and that you understood what you were doing at the time you made it. Witnesses don’t have to read the will – they just need to know you made and signed it independently and with a clear head. They must either be present when you sign the will, either in the same room or, temporarily, via video link.

In the event of a challenge to the will, your witnesses will be asked to give evidence stating that the will is genuine, has been properly executed, and you weren’t forced into writing it.

No witness or their partner can benefit from your will. If you’ve included a witness as a beneficiary, this request will be ignored and the intended inheritance passes back into your estate.

Explore how to choose your witnesses in our guide ‘Who can witness a will in the UK?’
 

What happens if I don’t have a will?

When you die without a will, this is known as dying ‘intestate’. At this point, the rules of intestacy come into play, allowing the state to divided up your estate.
  • If you’re married or in a civil partnership, your partner receives all your property and possessions, the first £270,000 of your estate, and half the remaining estate.
  • If you have children and your partner is alive, your partner gets the first £270,000 of your estate and your children will inherit if your estate is worth £270,00 or more. When this happens, they’ll get half the remaining estate divided between each child.
  • If you have children and no surviving partner, your whole estate is equally divided between them all.
  • If you have no surviving relatives, your entire estate is given over to the state (or Crown).

Ultimately, dying without a will means you can’t decide who gets what.
 

If I’m unmarried, will my partner benefit even if I don’t have a will?

Unmarried couples can’t benefit from each other’s deaths unless it’s written in a will.

There’s no legal recognition for co-habiting or common-law partners, and the rules of intestacy make no provisions for couples who aren’t married or in a civil partnership.
 

Can my will be contested?

A will is contested when someone disagrees or disputes its contents.

It might be that they think they deserve more inheritance or suspect the will is invalid, made ‘under duress’, or was improperly executed. At this point, your witnesses will be asked to give evidence.

To limit the possibility of a challenge, it’s best to employ a solicitor or will-writer to draw up your will. They’ll be able to make sure the document is proper, legal, and valid.
 

How much does it cost to contest a will?

Costs for contesting a will vary. It all depends on the complexity of the case and how long it takes to resolve.

If you’re looking to challenge the contents of someone’s will, speak to a solicitor as it’s subject to a time limit, depending on the type of claim being made.
 

What is probate and what has it got to do with writing a will?

Probate is a legal process that follows the death of someone with a will. In Scotland, probate is known as ‘confirmation’ and features a slightly different process.

The will’s executor must apply to the courts for a grant of probate, allowing them to legally carry out your wishes. This is why it’s important to choose an executor who can be trusted to settle your affairs.

For most cases, getting a grant of probate takes around 4 to 6 weeks. You should then expect the probate process to last around a year, although in more complex cases or the event of a challenge, it could take longer.

Find out what you need if you’re applying for probate in our guide ‘What is a grant of probate and how do you obtain one?’
 

What’s the difference between a will and a trust?

A will lets you decide who gets your assets after you die.

A trust is a legal document that gives someone the right to look after your assets on behalf of another – usually someone under the age of 18 or someone who lacks mental capacity.

There are two types of trusts: a living trust can come into force while you’re still alive, while a testamentary trust kicks in when you pass away.

See the different options in our article ‘What is better, a will or a trust?’
 

What happens to my will after I’ve made it?

Once your will is written, it’s important to keep the original, signed document safe.

There’s nothing stopping you from keeping your will at home, but it’s not always the most secure option, since it could be misplaced or damaged in a fire or flood.

If you use a solicitor or will-writer, they’ll usually ask if you want to store the will with them. It’s a safer choice, but some firms may charge you extra for this. Make sure you ask about prices, and whether you’ll be charged a lifetime or annual fee.

You can also lodge your will with the Probate Registry for a small cost.
 

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