Most people understand, at least in principle, that they should have a will. Yet surveys consistently show that the majority of adults in the United Kingdom do not have one. The reasons given are varied: there is always something more pressing, the subject feels uncomfortable, or there is a vague assumption that the law will distribute things sensibly without one.
That assumption is wrong. The legal rules that govern what happens to a person’s estate when they die without a will are fixed, formulaic, and frequently at odds with what the deceased person would actually have wanted. The consequences for the people left behind can be significant and, in some cases, severe.
This article explains what a will is, why making one is important for almost everyone, what happens if you die intestate, and what you should consider when preparing your own with the help from professional solicitors chester.
What Is a Will?
A will is a legal document that sets out how a person wishes their estate to be distributed after their death. It also allows the person making the will to appoint executors, who are responsible for administering the estate, and to make specific provisions such as appointing guardians for minor children, leaving gifts of particular items or sums to named individuals, and specifying wishes about funeral arrangements.
A will only takes effect on death. Until that point, it can be updated or revoked at any time, provided the person making it has the mental capacity to do so. Making a will does not commit you to anything during your lifetime, and the fact that circumstances change is not a reason to delay making one: it is a reason to review and update it periodically.
For a will to be legally valid in England and Wales, it must be in writing, signed by the person making it in the presence of two independent witnesses, and signed by those witnesses in the presence of the person making the will. The witnesses must not be beneficiaries of the will, or married to or in a civil partnership with a beneficiary, as this would invalidate any gift to them.
What Happens If You Die Without a Will?
Dying without a will is known as dying intestate. When this happens, the distribution of your estate is governed by the intestacy rules, a set of fixed legal provisions that apply regardless of your personal relationships, your wishes, or the particular circumstances of your family.
The intestacy rules in England and Wales operate as follows.
If you are married or in a civil partnership and have children, your spouse or civil partner inherits your personal possessions and the first three hundred and twenty two thousand pounds of your estate. Anything above that threshold is divided equally, with half going to the surviving spouse or civil partner and the other half divided equally between the children.
If you are married or in a civil partnership and have no children, your spouse or civil partner inherits everything.
If you are not married or in a civil partnership, your estate passes to your children in equal shares. If you have no children, it passes to other relatives in a defined order: parents, then siblings, then half-siblings, then grandparents, then aunts and uncles.
If no qualifying relatives can be found, your estate passes to the Crown.
There are several important points that the intestacy rules do not address. An unmarried partner, however long-standing the relationship, receives nothing under the intestacy rules regardless of how many years they have lived together or how financially dependent they may be on the deceased. This is one of the most common and most painful consequences of dying without a will, and one of the strongest arguments for making one regardless of how straightforward your circumstances appear.
Step-children do not inherit under the intestacy rules unless they have been legally adopted.
Close friends, whatever their relationship to the deceased, receive nothing.
Charitable causes the deceased cared about receive nothing.
The intestacy rules also say nothing about funeral wishes, the appointment of guardians for children, or the many other matters that a will can address.
Why Making a Will Is Important for Everyone
The popular perception is that wills are for older people with significant assets. This is a misconception that leaves a large number of people unnecessarily vulnerable.
Young adults with any assets at all, whether savings, a property, or a pension with a nominated beneficiary arrangement, have a direct interest in controlling what happens to those assets. For young parents, the ability to appoint guardians for minor children is arguably the most important reason to make a will, and one that no amount of wealth is required to motivate.
Unmarried couples living together are in a particularly precarious position without wills. Despite the widespread belief in a legal concept of common law marriage, no such status exists in English law. An unmarried partner has no automatic right to inherit anything, regardless of the length or depth of the relationship. If the deceased partner owns the family home in their sole name and dies without a will, their partner could face losing the home they have lived in for years.
Blended families, in which one or both partners have children from previous relationships, face particular complexity under the intestacy rules. A will allows parents in this situation to make specific provision for all the children they want to benefit, in whatever proportions they consider appropriate, rather than relying on the rigid and often inappropriate default rules.
Business owners have additional reasons to prioritise will-making. A business interest that passes to an unintended beneficiary, or that falls into an estate where there is uncertainty about succession, can create serious disruption at precisely the time when the business is most vulnerable.
What Should a Will Include?
The content of a will depends on the individual’s circumstances, but there are a number of matters that most wills should address.
Executors are the people appointed to administer the estate after death. They are responsible for identifying and valuing all assets, settling any debts, applying for probate where required, and distributing the estate in accordance with the will. Choosing executors carefully is important: they need to be trustworthy, organised, and willing to take on the responsibility. It is common to appoint two executors as a precaution, and many people appoint a professional executor alongside a family member for larger or more complex estates.
Specific gifts allow you to leave particular items or sums to named individuals. This is useful for items of personal or sentimental value that you want to ensure pass to a specific person, as well as for cash legacies to friends, family members, or charities.
The residuary estate is everything that remains after specific gifts, debts, and administration expenses have been dealt with. Your will should specify clearly who is to receive the residue, and in what proportions if it is to be divided between multiple beneficiaries.
Guardians for minor children is one of the most significant provisions a parent can make. If both parents die without having appointed guardians, the decision about who cares for the children falls to the court, which will make the decision it considers to be in the children’s best interests but without the guidance of the parents’ own wishes. Appointing guardians in a will does not legally bind the court, but it carries significant weight and removes considerable uncertainty.
Funeral wishes, while not legally binding, are a useful inclusion. Specifying preferences about burial or cremation, the type of service desired, or any other particular wishes gives the people responsible for making arrangements a clear guide and removes the burden of decision-making from them at an already difficult time.
Inheritance tax planning is a consideration for estates that may be subject to inheritance tax, currently charged at forty percent on the value of the estate above the relevant threshold. Wills can be structured to make use of available allowances and exemptions, potentially reducing the tax liability significantly. For larger or more complex estates, specialist advice is strongly recommended.
How Often Should a Will Be Reviewed?
A will made at one stage of life may not reflect your wishes or circumstances at a later stage. It is good practice to review your will whenever a significant life event occurs, including marriage, the birth of a child or grandchild, divorce or separation, a significant change in financial circumstances, the death of a named executor or beneficiary, or the acquisition of property.
It is particularly important to note that marriage automatically revokes any existing will in England and Wales, unless the will was made in contemplation of that specific marriage. Divorce does not revoke a will, but it does revoke any gift to the former spouse and their appointment as executor. This means that a divorced person whose will was made during the marriage should make a new one as soon as possible.
Getting Professional Advice
While it is possible to make a simple will without professional assistance, the risks of doing so are greater than many people appreciate. Wills that are incorrectly drafted or improperly executed can be partially or wholly invalid, with consequences that cannot be corrected after the testator’s death.
A solicitor near you with experience in will-making and estate planning can ensure that the will accurately reflects your wishes, is correctly executed, takes account of any relevant tax considerations, and anticipates the practical questions that commonly arise in estate administration. For anyone with a family, a property, a business, or any significant asset, professional advice is a worthwhile investment.
The cost of making a will with a solicitor is modest relative to the peace of mind it provides and the potential cost of not having one. It is one of those practical tasks that is easy to defer and genuinely important not to.