Making a will

Who should make a will?
If you care about what happens to your property after you die, you should make a will. Without one, the State directs who inherits, so your friends, favourite charities and relatives may get nothing.

It is particularly important to make a will if you are not married or are not in a registered civil partnership (a legal arrangement that gives same-sex partners the same status as a married couple). This is because the law does not automatically recognise cohabitants (partners who live together) as having the same rights as husbands, wives and civil partners. As a result, even if you’ve lived together for many years, your cohabitant may be left with nothing if you have not made a will.

A will is also vital if you have children or dependants who may not be able to care for themselves. Without a will there could be uncertainty about who will look after or provide for them if you die.

Your solicitor can also advise you on how inheritance tax affects what you own.

You should also consider taking legal advice about making a will if:

• several people could make a claim on your estate when you die because they depend on you financially
• you want to include a trust in your will (perhaps to provide for young children or a disabled person, save tax, or simply protect your assets in some way after you die)
• your permanent home is not in the UK or you are not a British citizen
• you live here but you have overseas property, or
• you own all or part of a business.

Once you have had a will drawn up, some changes to your circumstances – for example, marriage, civil partnership, separation, divorce or if your civil partnership is dissolved (legally ended) – can make all or part of that will invalid or inadequate. This means that you must review your will regularly, to reflect any major life changes. A solicitor can tell you what changes may be necessary to update your will.

Probate

When a person dies, someone has to deal with their affairs. This is called ‘administering the estate’.

If the person who has died leaves a will

• If the person who has died leaves a will, it will usually name one or more people to act as the executors of the will – that is, to administer their estate.
• If you are named as an executor of a will you may need to apply for a grant of probate.
• A grant of probate is an official document which the executors may need to administer the estate. It is issued by a section of the court known as the probate registry.

If there is no will

• If there is no will (known as dying intestate) the process is more complicated. An application for a grant of letters of administration (an official document, issued by the court, which allows administrators to administer the estate) will need to be made.
• The person to whom letters of administration is granted is known as the administrator. The administrator is the person who has the legal right to deal with the affairs of the person who has died, and is determined by a set order of priority.
• The administrator will usually be a close relative of the person who has died, if there is one. There may be more than one person who has an equal right to do this. Your solicitor will be able to provide you with information on the set order of priority.

Some more legal terms you may come across

Personal representatives (PRs)
This means executors or administrators. If there is more than one personal representative they must work together to decide matters between them. Disagreements between personal representatives can cause expensive delays.

Grants of representation
This includes grants of probate (when there is a will) and grants of letters of administration (when there is no will). Often people just refer to probate even if there is no will.

When a grant of representation is needed

• A grant of representation is not always needed, for example, if the person who died:
• has left less than £5,000 in total; or
• owned everything jointly with someone else.

However, some financial organisations may require a grant before giving you access even to a small amount of money. Usually, a grant of representation will be needed when the person who has died left:

• more than £5000;
• stocks or shares;
• a house or land; or
• certain insurance policies.