Legal Basics - Wills & Probate        
updated 25 January 2008

It has never been more essential for each of us to get things in order before we shuffle off this mortal coil, than it is today. The way we do that is by writing our Wills.

On this page we will deal with why you should have a Will and what happens if you don't have one (including the intestacy rules). We also take a look at Living Wills and and the new Lasting Power of Attorney (LPA).

On subsequent pages we will look at the increasingly burdensome Inheritance Tax issues, and possible ways of avoiding it, or at least coping with it, plus some guidance on Trusts. We also cover what happens after death if you are an executor, administrator or beneficiary, including getting a copy of a Will and Probate, the duties of executors and administrators, and full Probate Office contact details. 

Finally we have just added a new legal telephone helpline specifically for Wills and Probate problems. For just £40 you can have 20 minutes of expert advice from one of our panel of specialist wills and probate solicitors.

Do I really need a Will?

The simple answer is "Yes". Every adult should make a Will and review it regularly, particularly if their circumstances change, such as they get married, have children or get divorced. (If fact it is important to note that marriage invalidates any Will made before marriage).

So why? Well there are four main reasons:

1. The main reason is so that you can decide who should benefit (the beneficiaries) after your death. If you fail to make a will you are said to have died intestate. Under this country's intestacy rules the people to whom you would like to leave your estate may receive little, or nothing at all, and others may benefit whom you did not wish to do so (see the full rules below).
2. The second reason is to avoid Inheritance Tax. Inheritance Tax may be payable by your estate on assets over £300,000 (as of 6 April 2007). NB The Chancellor of the Exchequer announced in his Pre-Budget Report that for deaths on or after 9 October 2007 it will be possible for spouses and civil partners to transfer their unused inheritance tax nil rate band allowances.
   
   £300,000 may seem like a lot of money, but with the majority of people now owning their own properties it is worth sitting down to work out what your estate would be worth if you were to die tomorrow. You need to take into account your house, furniture, car, savings and all your personal belongings, plus any death benefits under pension or life policies. There are some simple things that can be done during your lifetime and under your Will, to reduce or negate any Inheritance Tax liability.
3. If you have children then it is possible to appoint guardians who will be responsible for your children's upbringing if neither parent is alive, and you can appoint someone you trust to look after your assets until the children become old enough to take responsibility for themselves (your trustees).
4. Why not?
   Its too morbid - Making a Will won't kill you and we all die sometime.
   I'm too young - If you are old enough to drink and vote then you should be responsible enough to make a Will.
   Its too time consuming (or the "I can't be bothered" argument) - You'd be amazed how quick it is. True it will need some thought from you, but the actual process of drawing up the Will is really very straightforward these days, particularly with the aid of computers.
   Its too expensive - Just plain wrong. A solicitor may charge you as little as £100 for a straightforward Will, and if you and your partner create identical Wills (mirror Wills) you are likely to get the pair at a reduced rate for the two.

There are three basic alternatives if you decide to go ahead.
You can write your own (perhaps with the aid of a Will writing kit). There is always the potential for a disaster this way, and if it should happen, then there is no-one to blame but yourself, and disasters can be expensive to sort out.
You can go to a Will Writer, who is not a qualified lawyer and will still charge you for making your Will. Check out their experience, how long they have been in business and their insurance cover in case they get it wrong. Remember if it seems too good to be true then it usually is.
The third option is to go to a solicitor. Some of them are actually quite nice people and they pay huge insurance premiums to protect their clients if they should get it wrong. Many produce guides and questionnaires to help you to decide what you want to say in your Will. They will also store your Will for you without charge.

So what are you waiting for?

Dying without leaving a Will (intestate) - Who gets what?
 - The Intestacy Rules

If you die without leaving a valid Will then the law decides who gets what. It does not matter what you may have wished for or promised while you were alive. If there is no valid Will then who gets what is determined by the Intestacy Rules. Here is a guide to what would happen.

If you have a lawful spouse (ie you are legally married) 
If your estate is worth less than £125,000 then your spouse gets everything. 
If  your estate is worth more than £125,000 and you had no other surviving relative (eg children, grandchildren, parents), then your spouse will still get everything.

If you have a lawful spouse, plus children
If your estate is worth less than £125,000 then your spouse gets everything. If  your estate is worth more than £125,000 then your spouse would get £125,000 and a life interest (ie the right to take interest on the remainder, but not the capital itself) in half of anything over this sum. Your children would get half the sum over £125,000 immediately and be entitled to the other half on the death of your spouse. Should any of your children die before you then their children would be entitled to take their parent's share.

If you have a lawful spouse, no children, but parents/brothers/sisters/ grandparents/aunts/uncles
If your estate is worth less than £200,000 then your spouse gets everything. If  your estate is worth more than £200,000 then your spouse would get £200,000, plus half the balance. The remaining half  goes to the other relatives in this order of priority - parents; brothers/sisters; half brothers/sisters; grandparents; aunts/uncles; spouses of aunts/uncles.

If you are not lawfully married, but have had children
Your estate will be shared between the children. Should they die before you then their children would take their share.

If you are not lawfully married, have no children, but have parents or have had brothers/sisters/grandparents/aunts/uncles
Your estate will be shared equally amongst them in this order of priority - parents; brothers/sisters; half brothers/sisters; grandparents; aunts/uncles; spouses of aunts/uncles. If any of these have predeceased, but have living children then the children will take their parent's share. 

If you are not lawfully married, and have no other relatives
Your estate will go the Crown 

It should be noted that these rules on intestacy do not recognise "common law" partners, and that "children" includes natural, adopted and illegitimate children, but excludes step-children. The figures are correct as at January 2007, but are subject to change.

What is an Enduring Power of Attorney? - now not able to be created

Many people will be familiar with the basic concept of a power of attorney being a written document which gives another person the right to act on your behalf, either generally, or in specific matters. So if you were going to be unavailable for a period of time, perhaps going abroad on holiday or for work reasons, you might grant a power of attorney to a friend or your solicitor, so that they could sign specific documents or carry out other transactions on your behalf.

An Enduring Power of Attorney (EPA) was a specific type of power of attorney, which gave a person the right to act for the donor of the power in their financial affairs, and to continue to do so even when if the donor has become mentally incapable. The EPA has now been replaced by the more complex LPA - click her for more information on LPAs.

Living Wills

The Government have recently indicated that they may give legal backing to the creation and use of so-called "living wills", which are perhaps more accurately described as advance decisions on stopping life-prolonging treatment.

Living wills have been with us for some years now, but lawyers and doctors alike are unclear as to their status in law. Is a doctor obliged to follow the directions given by a patient in a living will? With the advance of medical science there is even greater potential for individuals to be "kept alive" without any real prospect of them being able to live for themselves at any time in the future. A living will could cover the patient’s wishes in such a difficult situation.

The difficulty that the medical profession have at the present time is that they do not know whether any document that is passed to them as the patient’s wishes, however it is worded or presented, in such a situation is legally binding on them. The current advice from the BMA is that "…where incompetent or unconscious patients have made a formal and specific statement applicable to the circumstances, doctors should regard it as potentially legally binding". The current view of the courts is that, subject to a number of important limitations and conditions an advance refusal of treatment may be enforceable, provided it can be clearly established that the patient understood the result of refusing treatment, and was capable of making such a decision, and the decision applies to the treatment in question. This certainly leaves room for doubt in many situations and places medical staff in a potentially very difficult position when confronted by such a situation.

Until such time as the Government do give statutory backing to living wills, thereby "legitimising" their use, they will remain under utilised. However if you would like to make a living will there are few simple rules that you should follow:-

• The document you create needs to be clear and concise
• Consider the types of treatment that you would not like to undergo and try and give your reasons (this will help others to assess whether you would have consented to a specific treatment)
• Consider appointing a medical proxy, who can deal with decisions about medical care on your behalf
• Get the document witnessed by two people, who, preferably, will not benefit after your death
• Keep the original living will with your ordinary will, but provide copies to your next of kin, the medical proxy and your doctor
• the matter should be discussed with your GP

Consult your solicitor about the wording of the document and ask them to store your original will and living will together for safe keeping. Keep copies for yourself and make sure your next of kin are aware of the existence of the documents and their whereabouts.

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