FIRST STEPS

Wills and Intestacy

In this section we deal with wills – how to find them, identify whether they are valid and what to do if there is no will.

How to Find a Will

What is a will?

A will is a legal document that sets out the wishes of the person who has died. It will state the names or parties that are to benefit under the will and will often include specific quantified bequests, as well as more general ones. It is important to ascertain if there is a will and to locate it.

Where to look

Wills are not held on public record prior to death so you may need to search for one. Places to look are:
  • In a desk, safe or file in the deceased’s home
  • Kept by one of the executors or a relative
  • Their bank
  • Their solicitor
  • Their accountant
  • Their financial adviser
  • Their workplace
There are also a number of companies that charge for storing or registering wills (just search Google for “wills storage”). These companies also usually charge for searching so you are probably best steering clear unless you have evidence the deceased used a particular one. The exception is the Probate Service which charges £20 to store a will. It is free to search and free to withdraw wills.

First steps with the will

The will names one or more executors who are responsible for making sure that the wishes of the deceased are carried out. You should make sure that all executors are informed straightaway. As far as is possible you need to ensure that the will you have has not been invalidated by a more recent one. In order to be valid a will also needs to meet certain conditions: these are discussed in the Validity of Wills paragraph. If a will cannot be found, or you know that the deceased did not make a will the person will have died intestate. This is discussed in more detail in the section on Intestacy.

Validity of Wills

Why a will is important

A will is the only document that allows a person’s property to be treated according to their wishes after they die. Without a valid will a person will have died “intestate” and their property must be treated according to the laws of intestacy. A will also names the people who can perform the function of “executor” – i.e.. obtain a Grant of Probate and distribute the estate according to the wishes of the deceased (the “testator”). If the deceased had children under the age of 18 the will may state who should look after them.

Requirements for a valid will

If the will has been drawn up by a solicitor you can be reasonably confident that it is valid. The exceptions to this are:
  • If a more recent will exists (and contains a revocation clause)
  • If the testator has married or entered a civil partnership (unless an imminent marriage is specified)
  • A written document revoking the will exists
  • You think it may be a forgery
Even if a solicitor has been used it is not unheard of for a will to be challenged. This would usually be either because the wishes of the deceased were not correctly followed (the solicitor was negligent) or because a person believes they were insufficiently provided for. Contested wills are becoming more common and unfortunately they make the probate process much more complicated and also tend to be very expensive. If the will has been drawn up using an unregulated will drafter or is self-penned it is more common for these to be invalid. In order to be valid, in addition to items above, a will must satisfy the following:
  • The deceased must have been over 18 when it was made
  • The deceased must have understood what they were doing
  • There must have been no coercion involved
  • The will must be written, typed or printed – audio or video are not allowed
  • The will must be signed by the testator in the presence of 2 witnesses
  • The 2 witnesses must have signed the will Any codicils (additions to the will) have the same requirements for validity.

Contested wills

The will may have been contested for one of the following reasons:
  • The person making the will lacked the mental capacity to do so;
  • The person making the will was acting under undue pressure from one or more other parties;
  • Someone considers that they should have been provided for in the will as they were financially dependent upon the testator before they died
If a will is contested then the person making the “challenge” may have applied to the Probate Registry to enter a caveat. If successful, a caveat will prevent the executors or administrators from obtaining probate until such time as the contested issue has been resolved. Under such circumstances the executors should always obtain legal advice.

When to use a Solicitor

If you are unsure or have any doubt whatsoever about the validity of the will, whether it has been contested or about the meaning of it, you would be very well advised to ask a solicitor. The potential executor liabilities if you make a mistake are not worth the risk if you are not used to interpreting wills. Remember that probate gives you the authority to pay for professional advice. In fact your responsibilities when undertaking probate oblige you to do so if you have any doubt about your skills or knowledge. If the entire estate was jointly owned or if it all passes to a spouse or civil partner then the probate process will be simplified and a solicitor is not likely to be required. However, you may wish to consider varying the will and you will certainly need a solicitor to deal with this (see the Post Probate section for further details).

Intestacy

When do the rules of intestacy apply?

The rules apply when there is no valid will. Either a will was never made or it has been lost or is invalid. It is generally recognised that not having a will, although common, is not a good idea.

What are the rules?

If someone dies intestate then their estate has to be inherited according to clear, if somewhat complicated, rules. Even if their wishes were well known before they died, or a will exists but is invalid, their wishes cannot be taken into consideration. A spouse, civil partner or close relative must apply to the court for Letters of Administration which will allow them to deal with the estate. The rules on intestacy were changed for deaths occurring on or after 1 October 2014. This section will only deal with deaths after this date.

Who can inherit under the intestacy rules – death on or after 1 October 2014?

If the Deceased was Married or in a Civil Partnership at the Time of Death
 
For deaths on or after 1 October 2014 if an individual is survived by a spouse or civil partner but no children or remoter issue, the whole estate goes to the surviving spouse or civil partner. Under the old rules the surviving spouse or civil partner only received the first £450,000 and half of the excess over £450,000 with the other half going to parents or siblings.
 
If the deceased is survived by a spouse or civil partner and children or remoter issue (e.g. grandchildren) then the surviving spouse or civil partner will receive the first £250,000 and half of the excess over £250,000, the children receiving the other half. The surviving spouse or civil partner receives this half of the excess absolutely, whereas for deaths prior to 1 October 2014 their interest in the excess was only a life-interest whereby they received the income from the capital for their life but did not inherit the capital itself – this passed to the children on the death of the surviving spouse or civil partner. If the children are aged under 18 their share will be held on statutory trusts until they are 18.
 
The surviving spouse or civil partner also receives the personal chattels of the deceased in addition to the first £250,000. The definition of chattels was also changed with effect from 1 October 2014. Chattels now exclude assets held solely as an investment with no personal use at the date of death. This would be money, assets used solely or mainly for business purposes and any asset that was solely an investment.

Jointly owned assets

Assets that are jointly owned by the deceased and a surviving spouse or civil partner such as properties and bank accounts pass automatically to the surviving spouse or civil partner and do not count as part of the £250,000. For these rules to take effect the spouse or civil partner must survive the deceased by 28 days.
 
If the Deceased was Not Married or in a Civil Partnership at the Time of Death – If there are children of the deceased (including adopted children) then they inherit the whole estate equally. The descendents of a child who has died will inherit that share. Any such children will only receive the capital on reaching the age of 18. If there are no surviving children (or issue) then the deceased’s parents inherit equally. If there are no parents then the following relatives can inherit (in order of priority):
  • Brothers and sisters (and if they have already died then their children inherit their share)
  • Half brothers or sisters (and if they have already died then their children inherit their share)
  • Grandparents
  • Uncles and aunts (and if they have already died then their children inherit their share)
  • Half uncles and aunts (and if they have already died then their children inherit their share)
If there are none of these then the estate is “Bona Vacantia” – without ownership – and will pass to the Crown. About 2,000 estates pass to the Crown each year because relatives cannot be found. 
 
The Treasury Solicitor is currently advertising over 12,000 intestate deaths in the hope of finding relatives. The Treasury Solicitor is responsible for dealing with the estate in these circumstances. Common law partners are not entitled to receive anything under the rules of intestacy.

Financial dependents

Under some circumstances it is possible to apply to the Court for financial assistance when someone dies intestate, even if they are not in one of the classes of beneficiaries. For example, someone who has lived with the deceased for at least two years or who was treated as a child of the deceased could apply to the Court. There are time limits to make a claim and you would be advised to use a solicitor to make the application. The Court could agree to make a lump sum payment, make regular payments or transfer a property from the estate of the deceased.