Making a will, explained

A will does four jobs. It says who inherits what you own. It appoints the people who will deal with your affairs after your death, called your executors. It can appoint guardians for children under 18. And it can set out anything else you want the people left behind to know, from funeral wishes to who gets the ring your mother left you.

Everything you own on the day you die is called your estate. Your house or your share of it, your savings, your car, your possessions, any business interest, and anything owed to you. Some things sit outside the estate and are not controlled by your will at all. A house owned as joint tenants passes automatically to the other owner. A death in service benefit or a pension death benefit usually goes to whoever the scheme decides, guided by the nomination form you filled in years ago. Money in a joint bank account normally passes to the survivor.

That last point catches people out more than any other. You can write a careful will and still leave the largest single sum you own outside it. Part of what a solicitor does on the first call is work out which of your assets your will can actually reach, and which need a separate form or a change of ownership instead.

A will is also the only place you can be specific. The law has one answer for everybody. Your will can say that your daughter gets the house because she gave up work to look after you, that your stepson is treated exactly like your own children, or that a charity gets a fixed sum. None of that happens on its own.

Most people put it off because it feels like something for later life. It is not. The question is not how old you are. It is whether anybody would be worse off if you died this year without having said what you wanted.

You need a will if you own a home, on your own or with somebody else. You need one if you have children under 18. You need one if you are living with a partner you are not married to, because an unmarried partner inherits nothing automatically, however long you have been together. You need one if you have been married before, if you have stepchildren, if you have a business, or if there is anyone in the family you want to leave out or treat differently.

You also need one if you already have a will and your life has moved on since you wrote it. An old will is not neutral. It is a set of instructions that will be followed, naming people who may no longer be in your life and leaving out people who are.

The moments that usually make it real are buying a house, having a child, getting married, separating, and a death in the family. If one of those has just happened to you, that is the reason you are reading this, and it is a good reason.

If you die without a valid will you die intestate, and a fixed set of rules called the intestacy rules decides who gets what. They are the same rules for everybody and they take no account of what you would have wanted.

If you are married or in a civil partnership and you have children, your husband, wife or civil partner takes your personal possessions, the first £322,000 of the estate, and half of whatever is left. Your children share the other half between them. If you are married with no children, your husband, wife or civil partner takes everything.

If you are not married and not in a civil partnership, your estate goes to your children. If you have none, it goes to your parents, then your brothers and sisters, then further out through the family. If nobody qualifies at all, it goes to the Crown.

Two consequences do most of the damage. The first is that an unmarried partner gets nothing. Not the house, not the savings, not a share. They may have a claim they can bring in court, but a claim is a legal case, not an inheritance, and it costs money and months at the worst possible time. The second is that children inherit at 18, whether or not that is sensible, and the money has to be held on trust for them until then by whoever is administering the estate.

There is also nobody appointed. Somebody has to apply to be the administrator, and if the family does not agree on who that should be, the argument starts before anything has even been valued.

Most wills are built from the same handful of parts, arranged for your family.

Executors

The people who will carry out the will. You can appoint up to four, and no more than four can act at once.

Guardians

Who brings up your children if both parents have died before the children turn 18.

Specific gifts

A named item to a named person. A watch, a painting, a car. Keep the description clear enough that nobody has to guess.

Pecuniary legacies

Fixed sums of money. Five thousand pounds to a godchild, a thousand to a charity. Worth thinking about how a fixed sum will look in twenty years, when it may be worth much less than you meant.

The residue

Everything left after the debts, the funeral, the tax and the gifts above. This is the important clause, because it is usually where most of the value sits. It should always name a fallback, so that the will still works if the person you have chosen dies before you.

Trusts

A will can hold money for someone rather than handing it over. Commonly for children until they are older than 18, for a disabled family member whose benefits would be affected by a lump sum, or to give a second husband or wife the right to live in the house for life with the house then passing to your own children.

Alongside the will you can leave a letter of wishes. It has no legal force, but it explains your reasoning to your executors, and it is often the thing that stops a family falling out.

Your executors gather in everything you owned, pay what you owed, deal with HM Revenue and Customs if tax is due, apply for the grant of probate, and then pay out what is left in the way your will says. It is real work. For a straightforward estate it usually takes somewhere between six months and a year.

Choose people who are organised, who will still be around, and who can be trusted to be even handed with the rest of the family. Two is a sensible number, so nobody is on their own. They can also be beneficiaries. Your husband or wife inheriting everything and acting as executor is the most common arrangement there is, and there is nothing wrong with it.

What matters more than the job title is whether they will actually do it. An executor can step back if they have not started dealing with the estate, but an executor who takes it on and then goes quiet is a genuine problem for everybody else. Ask them first. It is a short conversation and it prevents a long one.

Executors are personally responsible for getting it right. If they pay out the estate and then a debt or a tax bill turns up, they can be liable for it out of their own pocket. That is a good reason to appoint somebody who will take advice when they need it rather than somebody who will not.

If your children are under 18, your will is the only reliable place to say who should bring them up if both parents have died. Without it, the decision goes to the family courts, which will hear from whoever comes forward and decide from cold. That is the last thing you would want for them.

A guardianship appointment normally takes effect when there is nobody left with parental responsibility for the child. If you are separated and the other parent has parental responsibility, they would usually take over, and your appointment would only bite if they had died too.

Think about the practical part, not just the emotional one. Where do they live and would the children have to change school. Do they have the space. Can they afford it, and if not, does your will leave money to the guardians as well as to the children so that they are not out of pocket for doing you the biggest favour of their lives.

Ask the people you have in mind before you name them. Almost everybody says yes, and the ones who would have said no are exactly the ones you needed to know about.

Wills with us start from a fixed fee of £150 + VAT for a single will, and from £275 + VAT for a matching pair of wills for a couple, usually called mirror wills. Your fee is confirmed on your consultation call before any work starts, not after.

What you are paying for is a conversation with somebody who has seen how these things go wrong, a document drafted for your circumstances rather than picked from a list, and a firm that is regulated by the Solicitors Regulation Authority and carries professional indemnity insurance. If a solicitor gets your will wrong, there is somebody to answer for it. That is the real difference between a regulated firm and an unregulated will writing service, and it is not a small one.

The cheapest will is the one you write yourself from a stationery shop kit, and it is also the one most likely to fail. The common failures are the same every time. It is signed wrongly. A beneficiary or their husband or wife acts as a witness, which cancels the gift to them. The wording is ambiguous, so the family ends up asking a court what it means. Or it simply does not cover what happens if somebody named in it dies first.

The cost of putting one of those right after a death is many times the cost of the will. That is the whole argument, and it is the only argument we make about price.

The rules come from the Wills Act 1837 and they have not softened. Your will must be in writing. You must sign it, or somebody must sign it for you in your presence and at your direction. Two witnesses must both be present at the same time when you sign, and each of them must then sign in front of you.

Both witnesses have to be there together. A will signed in front of one person in the morning and another in the afternoon is not validly executed. That single mistake is behind a large share of the wills that fail.

A witness must not be a beneficiary, and must not be the husband, wife or civil partner of a beneficiary. If they are, the will still stands but their gift is cancelled. Neighbours, colleagues and friends who inherit nothing are the safe choice. Witnesses should be 18 or over and able to see you sign.

You should be 18 or over yourself, and you need to understand what you are doing. That means understanding that you are making a will, having a broad idea of what you own, and knowing who might reasonably expect to be provided for. If there is any doubt about capacity, because of illness or age, it is worth having a doctor confirm it at the time. It costs a little and it makes the will very much harder to attack later.

Do not staple anything to the will, do not write on it afterwards, and do not remove the staple the firm put in it. Marks and holes on a will invite questions about whether something was attached and taken off.

Two events change a will without you doing anything. Getting married or entering a civil partnership revokes your existing will completely, unless it was made in express contemplation of that marriage. If you marry and do not make a new will, you die intestate. Divorce does not revoke the will, but your former husband or wife is treated as though they had died before you, so any gift to them fails and any appointment of them as executor falls away.

Everything else is a decision. Review your will when a child is born, when a beneficiary or an executor dies, when you buy or sell a property, when you separate, when your children reach an age where a trust is no longer needed, and when the value of what you own changes enough to affect inheritance tax.

If nothing has happened, a read through every three to five years is enough. You are checking that the names are still right, the people are still living, and the will still says what you would say today.

A small change can be made by a codicil, which is a short document signed and witnessed in exactly the same way as a will. In practice, unless the change is genuinely tiny, a new will is cleaner and costs little more. Two documents that have to be read together are two chances to be misread.

Never amend a will by crossing something out or writing in the margin. An alteration made after the will was signed has no effect unless it is signed and witnessed itself, and it casts doubt over the whole document.

A will that cannot be found is a will that does not exist. If the original is missing when you die, the law starts from the assumption that you destroyed it on purpose, and your executors have to argue their way past that.

The original signed document is what counts. A copy is not a will. Keep the original somewhere dry, safe and known about, and tell your executors exactly where it is. Not in a bank safe deposit box that nobody can open without a grant of probate, which is the document they need the will to get.

We can store your signed will for you. Ask us on the consultation call how that works and what it costs, and we will tell you straight.

Whatever you decide, write it down somewhere your family will look. A single sheet in a drawer listing where the will is, who your solicitor is, which bank you use, where the pension is and who the insurer is will save your executors weeks. It is the least legal and most useful document in this whole guide.

Yes, and challenges have become more common. It is worth knowing how, because most of the ways a will is attacked can be closed off while you are writing it.

A will can be challenged on the ground that it was not signed and witnessed properly, that you did not have the mental capacity to make it, that you did not know and approve what was in it, that somebody pressured you into it, or that it is a forgery. A solicitor drafting the will keeps a file note of the meeting, checks capacity, and sees you on your own where that matters, and all of that becomes the evidence that answers the challenge years later.

There is a separate kind of claim. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain people can ask a court for money out of the estate even where the will is perfectly valid. That includes a husband, wife or civil partner, a former husband or wife who has not remarried, a partner you lived with for at least two years, a child of any age, and anybody you were maintaining. A claim must normally be brought within six months of the grant of probate.

You cannot make that impossible. What you can do is make it much harder to succeed. Say why you have done what you have done, in a letter of wishes kept with the will. Be consistent between one will and the next. And if you are leaving out somebody who would ordinarily expect to inherit, tell your solicitor so the reasoning is recorded at the time rather than reconstructed afterwards.