Will in the UK - why is it worth making one?

Many people treat wills as a taboo subject: when a loved one, such as a parent, raises the question of what should happen to their property after death, we often avoid the conversation. That is unwise, because the better you prepare your estate, the easier it will be for your loved ones to deal with your affairs. This article explains why it is worth making a will in the UK. It mainly describes the rules in England and Wales; Scotland and Northern Ireland have different rules.

At what age should I make a will?

Even if you’re now in your 30s or 40s, have young children, enjoy good health and your career is growing rapidly, it’s worth considering in advance what should happen to your possessions when you’re gone. Accidents do happen, and even the best life insurance in the UK won’t protect you from death - none of us knows the day or the hour.

Making a will is the main way to make sure your estate is passed on according to your wishes rather than under the intestacy rules.

Why should you make a will?

Making a will is common sense. Without a will, your estate passes under the intestacy rules, which may not reflect your wishes. There are also some specific reasons to make one:

Planning your family’s financial future

Above all, a will lets you divide your assets fairly, which does not necessarily mean equally. This matters if, for example, one of your children finds it hard to manage money, or your partner may need more money for medical treatment because of poor health.

Inheritance rules differ between England and Wales, Scotland and Northern Ireland. For example, in Scotland a spouse, civil partner and children have ‘legal rights’ to part of the moveable estate even if there is a will. If there is no will, a surviving spouse or civil partner usually has priority under the intestacy rules, which may not match what you would have wanted. By contrast, an unmarried partner does not inherit under the intestacy rules; they may only be able to apply to the court for financial provision. If you live with a partner without being married or in a civil partnership, making a will is especially advisable.

Legal security for your children

In England and Wales, a parent with parental responsibility can appoint a guardian to look after their children if neither parent with parental responsibility is still alive. The appointment is usually made in a will, but it can also be made in a signed and dated written document. Without an appointment, a court may need to decide who will care for your child, so it is worth choosing that person yourself.

Reducing the risk of disputes

Heirs sometimes disagree about the assets left behind, for example about how individual assets are valued. A clear, valid will that sets out how your property and other assets should be divided can reduce the risk of disputes between heirs, although it cannot rule them out.

What a will can and cannot cover

A will deals with the distribution of property after death, and it can also appoint executors and guardians for your children. It does not cover decisions about your care if you become seriously ill or lose mental capacity. In England and Wales, those decisions are covered by a lasting power of attorney; Scotland and Northern Ireland have their own arrangements.

Wills and mortgages

It is worth remembering that you should also include your real estate in your will, whether it is mortgaged or not.

If you have a joint mortgage with your spouse, what happens to your home depends on how you own it. If you own your home with your spouse as joint tenants, your share passes automatically to them when you die, whatever your will says. If you own it as tenants in common, your share passes under your will, or under the intestacy rules if there is no will. If there is no will in England and Wales and you have children, your spouse or civil partner receives your personal possessions, the first £322,000 of your estate and half of the remainder; other UK nations have different rules. The mortgage debt does not disappear: it must still be repaid from the estate or by the surviving borrower.

In many cases, mortgages are applied for by those living in informal relationships or making unequal installment payments in the UK. Some of our clients also know that their children will not want to live in their homes and plan in advance that the property in question is to be sold, with the proceeds to go to the heirs for any purpose they choose.

How do you make a valid will?

In England and Wales, you must be 18 or over, make your will voluntarily, be of sound mind and make it in writing. Scotland and Northern Ireland have different rules (for example, in Scotland you can make a will from age 12). You must make your will voluntarily and be of sound mind when you make it.

In England and Wales, you must sign your will in the presence of 2 witnesses who are both over 18, and they must sign it in your presence. In Scotland, a witness is not legally required, but one witness makes the will self-proving. You cannot leave anything in your will to a witness or to a witness’s spouse or civil partner: in England and Wales such a gift fails, although the rest of the will remains valid.

In England and Wales, any change must be made with a codicil or a new will, signed and witnessed in the same way as the original will. It is a good idea to review your will regularly and after major life events, such as marriage, divorce, having children or buying a home. In England and Wales, getting married or forming a civil partnership normally cancels any will you made before, so you should make a new will afterwards.

We recommend asking a specialist, such as a solicitor or a professional will writer, to draft your will. You have the right to write your own will, but mistakes can sometimes make a will invalid. Specialist help is particularly worth considering if your assets are varied or you have a large family you want to provide for.

Don’t put it off: making a will now helps you plan for your children’s future, just in case. If you want to get specialized help and be sure that your will is valid, we invite you to a free consultation.