The short answer is everyone. However, depending on your intentions and assets, certain people are more in need of a Will than others, in particular:

1. Married couples/civil partners who have a large sole estate – it is a common misconception that if you do not leave a Will then, on your death, your surviving spouse will inherit your entire estate. This is sometimes not the case as the Government have placed a limit on what your surviving spouse will receive. At present, if you die without a Will, leaving a surviving spouse and children, your spouse will only receive the first £250,000 of your solely owned estate. The remainder of your estate will be divided in two, with one half passing equally to your children, and the other half being invested for the lifetime of your surviving spouse, who will receive the income until their death when the capital will revert to your children. If you die leaving a spouse but no children, your surviving spouse will receive the first £400,000 and half of the remainder of your solely owned estate. The other half will pass to your parents, if alive, or if not to your brothers and sisters or their children in their place.
2. People who are co-habiting [including those in a same-sex relationship] – if you do not make a Will then on your death your estate will be divided according to the Intestacy rules and will not pass to your partner but will instead pass to members of your family. Without a Will your partner will not receive anything.
3. Families with stepchildren – if you die without a Will but have stepchildren or other step relations, they will not inherit your estate as, under the Intestacy rules, only natural blood or legally adopted relations will inherit.
4. Single parents with minor children – can nominate who they wish to act as guardians of the minor children. Please see questions 18 and 19.
5. Married couples/civil partners – Please see question 29.
6. People currently in divorce proceedings – if you are currently going through divorce proceedings but have not yet obtained the Decree Absolute you should make a Will, otherwise your estranged spouse will inherit the estate if you were to die before divorce proceedings are finalised.
7. People who wish to exclude family members – please see question 15.
8. People who own their own businesses.

Upon signing your new Will, your old Will is revoked and deemed invalid. However, please do not destroy your old Will until you have first taken legal advice.

Marriage automatically revokes a Will, unless it is stated to be made in contemplation of that specific marriage. If you subsequently get divorced, your Will is still valid but any gift to the divorced spouse will lapse, unless a contrary provision is shown in the Will.

In order to protect your chosen beneficiaries, your spouse/partner should also make a Will. Otherwise, if you wish for your estate to pass to your spouse/partner on your death, and they survive you but do not make a Will, on their death their estate (which now includes everything they inherited from you) will pass to members of their family under the Intestacy rules. These people may obviously not be those whom you wish to receive your estate. However, if you both make a Will, each could refer to both sets of beneficiaries (if different) ensuring that your chosen beneficiaries can inherit irrespective of whether you are the first or second to die.

This is when your spouse or partner makes a Will that contains the same provisions as your own i.e. they mirror each other.

Your estate is everything you own. Every asset you own, no matter how small it might be, makes up your estate. Your residuary estate is everything you own once your funeral expenses and all other debts [including any tax due] and legacies have been paid and specific gifts distributed.

These are the people who will deal with your estate after your death. They will collect in your assets, pay your liabilities and distribute your estate according to the terms of your Will. They will also act as trustees for any minor beneficiaries.

You can appoint up to 4 executors (preferably at least 2) and you can appoint anyone as long as they are aged over 18, are of sound mind and are trustworthy enough to deal with your estate. Many people wish to appoint solicitors or other professional persons to act as their executors. If your estate or the terms of your Will are complex, or you feel that appointing family members may cause distress or hostility, it may be best to appoint professionals to administer your estate. However, any professional person involved in the conduct of the administration of your estate will charge for their time spent and their fees would come from the estate before the estate is distributed to your beneficiaries.

You should also nominate substitute executors to act if your initial executors have either predeceased you or are unable or unwilling to act.

Yes, within reason. You can express, for example, whether you wish to be buried or cremated, what type of service you would like, which hymns or songs are to be played, the type of flowers etc. Many people wish to leave their body to medical science, but please note that if you do your body may be kept by that particular research institution for up to 3 years, thus delaying your funeral. You should however be aware that any reference to your funeral requirements is only an expression of your wishes and is not binding on your executors. In case you change your mind regarding your funeral wishes, you may want to express more detailed requirements in a letter which can be kept with your Will.

Beneficiaries are the people whom you wish to inherit your estate following your death. You can name as many or as few beneficiaries as you wish and either have them inherit your entire estate, or a share of your estate, or a specific gift(s), or a sum of money.

There are 4 main types of asset that you may not be able to leave in your Will:

1. Joint Property – if you own property as Joint Tenants then, on your death, your share will pass outside your Will to the surviving co-owner. This is known as survivorship. If you hold the property jointly as Tenants in Common you can give your share of the property, in your Will, to anyone you wish. Please see questions 21, 22 and 23 for further information regarding joint property.
2. Life Policies – the benefit passes to someone else under the terms of the policy.
3. Pensions or Death in Service Benefits – these are usually payable at the Fund Trustees’ discretion and, although a nomination form may have been completed by you indicating your wishes, the Fund Trustees do not have to comply with them.
4. Nominated Assets – these are very rare and, in fact, only funds in an old-fashioned Post Office account can be nominated in this way.

Not necessarily. If you make a gift of a specific asset to a specific person (e.g. your house) then they will simply receive that asset. Furthermore, your Executors will have the power to use any asset of your estate to satisfy a beneficiary’s entitlement, subject to the agreement of the beneficiary. Therefore, if, for example, one of your beneficiaries wants to take your car as part of their inheritance, then the Executors can agree to give them the car, but would take account of this when distributing the cash in the estate. Finally, it may be that your beneficiaries would simply agree to having, for example, the house transferred into their joint names and if this was the case the Trustees could agree to this.

If you have assets in a foreign country (and this includes Scotland), you must make an additional Will in that country in respect of those assets.

Most people believe that if they tell their executors beforehand that they would like a certain item to pass to a certain person, then their executors will follow their wishes. This is not the case as your executors are bound by the strict terms of your Will and can only diverge from this with the agreement of the beneficiaries who would be prejudiced by this request. Similarly, if you leave everything to one relative in the belief that they will share this with others, they are not obliged to do so. Once he or she has received that gift it belongs to them and they are not under any duty to share it with anyone, even if that was your intention. Therefore, if there is a specific item that you want someone to have, or if you would like someone to receive a certain sum of money, you MUST provide for this in your Will.

Please note, however, that you should only refer to specific assets or items you know you will still own at the date of your death, otherwise the gift will become void. For example, your Will specifically mentions that you wish to leave the entire balance in a particular bank account to your sister. However, you then close this account and transfer the balance to a new account. As your Will specifically refers to the old bank account, on your death your sister would not receive the money that was due to her, even though it is being held in another account. This is because the Will specifically refers to a certain account that is no longer in existence. This situation could simply be avoided by giving your sister a percentage or share of your entire estate, rather than refer to a particular bank account.

The problem of tracing the whereabouts of your relatives would pass to your executors. Costly enquiry agents may have to be employed and adverts placed in newspapers to locate them. To avoid this, you should always try to include full names [and relationship to you] together with postal addresses of all executors and beneficiaries in your Will.

You can leave any family member out of your Will, but be careful as certain excluded individuals may have grounds to dispute your Will under the Inheritance (Provision for Family and Dependants) Act 1975. An additional statement may therefore have to be signed at the same time as your Will, setting out the reasons why you do not wish that particular individual to inherit. If you have any concerns about this, you must raise these with the person taking your Will instructions, who will be able to advise on ways of protecting your estate.

Gifts of small amounts of money or small items may be inherited from the age of 16 if specifically stated in the Will. However, in general children cannot inherit until they reach the age of 18. The inheritance can be delayed to a later age if you wish, but any child will be entitled to receive income from the Trust from the age of 18, unless specified otherwise. It is perhaps better not to delay the inheritance too long as this may cause not only hostility but also incur legal costs while the Trust is being administered. If you die before a child attains your chosen age of inheritance, their share of your estate will be held in Trust for them until they reach that age.

We usually recommend that gifts to a class of people are phrased to ensure that any born in the future may be included e.g. ‘my children’ or ‘my grandchildren’ instead of naming each specifically.

Your Will can be drafted to include any future children or grandchildren you may have. You do not, therefore, have to amend your Will every time you have a child or grandchild.

Guardians are the people you nominate to make decisions for your minor children’s welfare after your death. Normally two close family members, who are preferably living in a stable relationship, are appointed as guardians. Your children may or may not live with them depending on who else has parental responsibility, but by naming them you have indicated who you trust in your absence. If you do not nominate guardians, and there is no one left who has parental responsibility, it will fall to the Courts to decide who will look after your children.

The appointment of guardians is particularly complicated in step-family relationships. If this affects you it is important that you raise this matter with the person taking your Will instructions.

No. Your executors can authorise the use of any monies that you leave to your children for their benefit until they are old enough to inherit, and this may be paid to the guardians or anyone else who is caring for the children.

A House Trust is where your share of the property is held on Trust for your children or other chosen beneficiaries during the lifetime of your spouse or partner, and then on their death your children or other chosen beneficiaries will inherit your share of the property. In order to create a House Trust the tenancy must be ‘severed’ to ensure that you own the property as Tenants in Common (see question 23).

The House Trust ensures that your surviving spouse or partner can remain living in the property providing that he or she keeps the property in good repair and pays all outgoings. It also allows the house to be sold should your surviving spouse or partner wish to move. The Trust can therefore be transferred to another property and any balance of sale proceeds can be divided in accordance with one of the 3 following options:-

1. your share of sale proceeds can pass to your surviving spouse or partner; or
2. it can be invested for the life of your surviving spouse or partner, during which time they would receive the income, and on their death it would pass to your children or other chosen beneficiaries; or
3. it can pass straight to your children or other chosen beneficiaries.

There are various reasons why people may wish to include a House Trust in their Will, two of the most popular being:

1. a way of protecting your share of your house for your children or other chosen beneficiaries; and
2. a way of protecting your house from Care Home fees should your partner go into care.

The vast majority of Wills provide that on a person’s death their entire estate will pass to their spouse or partner, but that if the spouse or partner predeceases then the estate will pass instead to the children.

However, many people are concerned that when they die their spouse or partner will enter into another relationship or remarry, and their estate may therefore pass to that new spouse or partner or even their children. This is a particular concern where couples are still very young or have children from previous relationships whose inheritance they wish to protect. As most people’s main asset is their share in the family home, a House Trust can often solve this problem.

If you own your home jointly as Joint Tenants then the surviving owner will inherit the entire house irrespective of any provisions in your Will. However, if you own it as Tenants in Common you can either give your share of the property immediately to your beneficiaries on your death (thus the house would be jointly owned by them and your surviving spouse or partner) or you can include a House Trust giving your spouse or partner the right to remain in the property during their lifetime, and then on their death your share in the property will revert to your children or other chosen beneficiaries. By doing this, if your spouse or partner does enter into a new relationship, your share in the property will always be protected for your children.

The House Trust, as described above, can also be used to protect your share of your property as an inheritance for your children or other chosen beneficiaries should your spouse or partner go into long term residential care. If the house was owned as Joint Tenants at your death then it would automatically pass to the surviving joint owner, so that if the house has to be sold to pay Care Home fees the entire sale proceeds become available capital for that purpose. However, if the property is owned as Tenants in Common the house again may have to be sold to pay for fees, but this time only the share belonging to your spouse or partner would be used to pay the fees and your share would pass immediately to your chosen beneficiaries.

Please note that you cannot avoid paying Care Home fees simply by transferring your property into the names of your children or other relations. The Local Authorities will consider this as a deliberate deprivation of capital and will assess your capital and eligibility for help with Care Home fees, including the value of your share in the property even though you no longer own it. This could result in a situation where you may have insufficient funds to pay the fees. There are various other reasons why we would advise against transferring your home into someone else’s name: loss of security of owning your own home; the new owners have the right to evict you should they wish; or the house may become subject to the new owners divorce, probate or bankruptcy proceedings.

You may also wish to seek advice from an Independent Financial Advisor, who may be able to provide you with information regarding other steps that could be taken to reduce the amount of Care Home fees payable.

You may wish to give your estate to people who may not be able to fully control their money e.g. a disabled person, someone with mental problems, or a child. In such cases it is possible to include a Discretionary Trust, where control of the funds for that beneficiary is retained by your Trustees who will give money to that beneficiary as and when they consider appropriate. This can have the added benefit of enabling the beneficiary to retain State means-tested benefits, as any payment to them is at the absolute discretion of the Trustees.

This depends on your initial Will instructions. If you wish to govern what is to happen to your assets if a beneficiary dies after you, you cannot give the asset to them outright (as otherwise it would belong to them and would fall into their estate when they die) but instead could only give them a life interest in the asset. In other words the asset would be held in Trust and that beneficiary would receive the benefit but only while he or she remained alive. Then, on his or her death the asset would pass to another beneficiary.

If a chosen beneficiary predeceases you then you can decide who is to receive the gift in their place. For example, you may wish your estate to be divided equally between all of your children but wish that the share of any who predecease you is re-divided amongst the survivors. Alternatively you may wish for the spouse or children of your deceased child to inherit his or her share instead.

If all of your beneficiaries predecease you then your Will technically fails as there is no-one left to inherit your estate. Your estate would then be divided in accordance with the Intestacy rules and may pass to distant relatives whom you do not wish to benefit or, failing that, the Crown. If you do not wish this to happen you should include an ultimate beneficiary, such as a charity or other organisation which will not disappear and who will only inherit should all of your other beneficiaries predecease you.

Your Will is still valid but any gift made to that particular beneficiary will be void and they will not receive anything. This is to prevent undue influence or pressure from someone who is forcing you to make a Will.

We can keep the Will for you as well as your Title Deeds. Alternatively you may keep the Wills yourself. Whichever you choose, it is advisable that copies are also kept, and you should keep a note of where your Will can be located with your papers so that your funeral wishes and the Will provisions are known to your executors at the earliest opportunity.

Any minor change can be made by Codicil which is kept with your original Will. Numerous or complex changes can only be done by making a fresh Will. We recommend that you review your Will every 5 years or whenever your personal circumstances change.

Please note, however, that you can only amend your Will if you have mental capacity to do so. We would therefore advise that if you ever need to change your Will you should do so immediately and not put it off to a later date.

No. The addresses are only used for identification and tracing purposes. However, you may need to consider making a new Will if you move house as you have acquired a new asset.

Generally speaking the value of the assets you will be able to pass on to your chosen beneficiaries, free of inheritance tax, depends on the “nil rate band” at the time of your death and your marital status.

The nil rate band is set by the government and usually increases each tax year. The current nil rate band is £325,000 for the tax year 2009/10 and £350,000 for the tax year 2010/11.

If you are single or divorced the most you can normally pass down tax free is the nil rate band at the time of your death.

However due to recent changes in the law if you are married, in a civil partnership or widowed a much more generous regime operates.

Firstly if you are a widow or widower, and your deceased spouse or civil partner left you their entire estate, you will be able to pass down double the nil rate band at the time of your death (i.e. £650,000 in tax year 2009/10 or £700,000 in tax year 2010/11) tax free to your chosen beneficiaries. It does not matter how long ago your spouse died.

Secondly if you are married or in a civil partnership and bequeath everything in your Will to your spouse or civil partner, this will be entirely inheritance tax free on your death regardless of the value of your estate. On the subsequent death of your spouse or civil partner they will be able to utilise your nil rate band and therefore pass down double the nil rate band at the date of their death to their chosen beneficiaries, no matter how long they outlive you.

Inheritance Tax planning is a complicated area of law and can be affected by the type of assets you own at your death and the nature of your ultimate beneficiaries, for example any gift to a charity is exempt from Inheritance Tax.

Each individual’s circumstances are different and therefore if you believe that Inheritance Tax may impact on your estate we recommend that you seek specialist tailored advice from one of our Solicitors.

Despite the recent changes in the law referred to above, there are still situations where it may be appropriate to include a Discretionary Trust in your Will.

These might include where there has been a second marriage, where there are disabled children, where there are step-children or where your children are relatively wealthy and it would be sensible to plan to mitigate the Inheritance Tax on their estates.

There are also certain types of long term financial planning that can be done using different types of trusts particularly when a family business forms a large part of the estate.

Your advisor will be able to discuss the potential advantages of using a trust in your Will, and the trusts can be tailored to your individual situation. This is a very complex area and specific advice from our experts is recommended.

Some home-made Wills are valid and do what is intended. We hope that if you have managed to read this booklet however, that you will realise that making a Will is not a simple matter and, in order to ensure that what you intend is achieved, it is preferable to instruct a solicitor to draft the Will for you. It will not cost a fortune, but it may save one for your beneficiaries.

If you are in any doubt about the validity of a home-made Will you already have, please contact us for advice.

It is a common misconception that by making a Will your executors will not have to obtain a Grant of Probate to administer your estate. If land or property is involved, a Grant of Probate will need to be obtained before the property can be sold. Otherwise it will depend on the value and type of your assets. Normally, if the entire estate is less than £20,000 your executors will not need a Grant of Probate. However, all financial institutions follow their own internal rules and policies and may insist that a Grant of Probate is obtained, even if the total value of the estate is under £20,000.

When reviewing your personal affairs at the time of making a Will, it is an excellent time to put a Lasting Power of Attorney in place.

An LPA is a new document which enables you to appoint people you trust to look after you if in the future you lose the mental capacity to do so.

The LPA is divided into two forms dealing with separate aspects of your affairs.

The Property & Affairs LPA enables you to appoint someone to manage your financial affairs if you become unable to do so. The Attorney under this power will be able to operate your bank accounts pay your bills and invest your assets for you.

The Personal Welfare LPA allows you to appoint an attorney with the legal power to make medical decisions on your behalf if you become incapable and also the power to arrange residential care for you if this becomes necessary.

You can make each kind of LPA independently of the other.