A will is a document that sets out in writing the deceased’s wishes for his or her possessions, after death. It also deals with guardianship and financial provision for children.
Before making a will, you need to think about who you want to leave your property to. You must also decide on who you want to act as executor or executors. An executor ensures that your assets are distributed according to your wishes. They can also be a beneficiary under the will.
If you do not make a will, it means that you die ‘intestate’. If you die intestate, your estate, or everything that you own, is distributed in accordance with the law by an administrator.
The requirements of a valid will
In order for a will to be legally valid, the following rules apply:
- The will must be in writing.
- You must be over 18 (if you are or have been married you can be under 18).
- You must be of ‘sound mind’.
- You must sign or mark the will or acknowledge the signature or mark in the presence of two witnesses.
- Your two witnesses must sign the will in your presence (not beneficiaries).
- The signature or mark must be at the end of the will.
Revoking a will
A Will is automatically revoked where:
- You marry or enter into a civil partnership.
- You make another will.
- You draw up a written document that is executed in accordance with the requirements for a will, your first will shall be revoked.
- You burn, tear or destroy your will, it will no longer be considered valid.
Legal rights of spouses, civil partners and children when there is a valid will
Spouses and children have certain inheritance rights which arise by operation of law.
Rights of a spouse or civil partner
If you have left a will, and your spouse/civil partner has never renounced or given up his/her rights to your estate, then that spouse/civil partner is entitled to what is called a “legal right share” (LRS) of your estate. This legal right share is:
- One-half of your estate if you do not have children
- One-third of your estate if you do have children
Your spouse/civil partner does not have to go to court to get this share, as any executor is obliged to grant this share where applicable.
It is possible for a spouse/civil partner to renounce his/her rights to the LRS. This can form part of an agreement prior to marriage/civil partnership. However, any such renunciation may not be valid in certain circumstances (e.g. in cases of undue influence).
The surviving spouse/civil partner may require that the family/shared home be given to him/her in satisfaction of his/her LRS, although if the house is worth more than the share, the spouse/civil partner may have to pay the difference into the deceased’s estate. A court may decide that this sum does not have to be paid if it would cause undue hardship to the spouse/civil partner or dependent children.
If a couple is separated, a renunciation of each other’s right to the legal right share is usually included in a separation agreement. Divorce or dissolution of a civil partnership, however, automatically ends succession rights.
Cohabiting partners have no automatic legal right to each other’s estates, although a qualified cohabitant may apply for provision to be made from the estate of a deceased cohabitant. Cohabiting partners can make wills that favour each other. These wills, however, cannot cancel out the legal rights of a spouse/civil partner if someone is separated but not divorced or their civil partnership dissolved.
Rights of children under a will
Unlike a spouse/civil partner, children do not have any absolute right to inherit their parent’s estate if the parent has made a will. However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. A parent can appoint a guardian for children who are under the age of 18. Trustees can also be appointed who can manage finances until the children are old enough to manage them.
Giving away property in order to disinherit
If a court finds that the deceased person gave away property before he/she died with the intention of defeating the interest of or unfairly reducing the legal right share of a spouse/civil partner or child, a court order may be issued to the person who received the property, making that person a debtor of the estate, and requiring them to pay back an amount to the estate
Joint bank accounts
Where joint bank accounts are opened with a spouse/civil partner or child, it is presumed that one party will be fully entitled to the money in the account when the other party dies. Disputes can arise, however, if someone, perhaps an elderly person or a person with a physical disability, opens a joint bank account with a relative or friend so that the relative or friend can manage his or her finances for him or her. This is because the owner’s intention may or may not have been to benefit the relative or friend. A decision in such a case would depend on the intention of the people involved, the amount they each lodged into the account and the terms of their contract with the bank. It is advisable for people with joint accounts to make clear in their contract with their bank or in their will what their intentions are for the money in such accounts.