Introduction to Making a Will
A will is a legal document that lets you decide what happens to your money, property, and personal belongings after you die. It gives you control over how your estate is distributed, ensuring your wishes are followed and helping to prevent disputes among family or friends. By making a will, you can clearly state who should inherit your assets, who will look after any children under 18 (by appointing guardians), and who will be responsible for carrying out your instructions (known as executors).
Having a valid will is an essential part of estate planning in the UK. Without one, your estate will be divided according to the rules of intestacy, which may not reflect your preferences. Creating a will also allows you to consider important legal and financial aspects, such as potential inheritance tax obligations. The Inheritance Tax Act 1984 sets out the rules for how inheritance tax is applied to estates in the UK.
To learn more about the process and legal requirements, you can explore our detailed guidance on how to create a valid will, including information on choosing executors, appointing guardians for children, and understanding how inheritance tax might affect your estate.
Who Can Make a Valid Will
To make a valid will in the UK, you must meet certain legal requirements. Generally, anyone aged 18 or over with the necessary eligibility criteria for making a will can create a will, provided they do so voluntarily and understand what they are doing.
Age Requirement:
You must be at least 18 years old to make a will in England and Wales. There are some exceptions, such as members of the armed forces on active duty, who may be able to make a will at a younger age.
Mental Capacity:
You must have what is known as "testamentary capacity" – the mental ability to understand the nature and effect of making a will. This means you should understand what a will is, what property you have, and who might expect to benefit from your estate. If there is any doubt about your mental capacity, your will could be challenged after your death.
Legal Framework:
The main law governing wills in England and Wales is the Wills Act 1837. This Act sets out the formal requirements for making a valid will and outlines who is eligible to do so.
Special Cases:
Certain situations – such as serious illness, disability, or undue influence from others – may affect your ability to make a valid will. If you are unsure about your eligibility or circumstances, it is wise to seek legal advice before proceeding.
What to Include in Your Will
When making a will, it’s important to be clear about what you want to happen to your assets and personal matters after your death. Here are the main things you should consider including:
Assets and Property
List all significant assets you own, such as your home, savings, investments, personal possessions, and any other property. You can specify how each item or share of your estate should be distributed among your chosen beneficiaries. This helps to avoid confusion and potential disputes.
Naming Beneficiaries
You need to clearly state who will inherit your assets. Beneficiaries can be individuals (such as family or friends), charities, or organisations. Be specific about what each beneficiary should receive, whether it’s a particular item, a sum of money, or a percentage of your estate.
Funeral Wishes and Personal Requests
While funeral wishes are not legally binding, you can use your will to express your preferences for your funeral or any other personal requests. This can provide guidance and reassurance for your loved ones.
Creating Trusts in Your Will
If you want to set aside assets for someone’s benefit – such as young children or vulnerable adults – you can do this by creating a trust in your will. To learn more about trusts created by wills, see our dedicated page. Trusts are governed by specific laws, including the Trusts of Land and Appointment of Trustees Act 1996, which outlines the powers and duties of trustees.
Appointing Guardians for Children
If you have children under 18, you can use your will to nominate guardians who will look after them if both parents die. For more on choosing guardians for your children, visit our guidance page. This is a crucial step in ensuring your children’s welfare is protected according to your wishes.
Legal Requirements
To ensure your will is valid, it must meet the conditions set out in the Wills Act 1837, which includes rules about signing and witnessing the document. Following these requirements helps make sure your wishes are legally recognised.
Choosing Executors and Guardians
When making a will, one of the most important decisions is who will carry out your wishes after you die. Executors are the people you name in your will to manage your estate – this includes collecting assets, paying debts, and distributing what’s left according to your instructions. Choosing reliable executors is crucial, as they have a legal duty to act in the best interests of your estate and its beneficiaries. For more guidance on selecting executors for your will, see our detailed information.
If you have children under 18, your will is also the place to name guardians – trusted adults who will look after your children if both parents die. Deciding on guardianship is a significant step, so it’s wise to think carefully and discuss your choice with those you wish to appoint. For further details on appointing guardians for your children, read our guide on legal guardianship in wills.
Before finalising your will, talk openly with your chosen executors and guardians to ensure they understand what’s involved and are willing to take on the responsibility. The legal requirements for appointing executors and guardians are set out in the Wills Act 1837, which outlines the formalities needed for your will to be valid. Taking the time to make these choices carefully will help ensure your wishes are respected and your loved ones are protected.
Formal Requirements: Signing and Witnessing Your Will
When making a will in the UK, following the correct process for signing and witnessing is essential to ensure your will is legally valid. The law sets out clear requirements that must be met; otherwise, your will may be challenged or declared invalid after your death.
Legal rules for signing a will
Your will must be signed by you, the person making the will (the testator), in the presence of two witnesses. Both witnesses must see you sign the will, or you must acknowledge your signature to them, while you are all present together. These rules are outlined in Section 9 of the Wills Act 1837, which is the main law governing wills in England and Wales.
Who can be a witness?
You need two independent witnesses. They must be over 18, of sound mind, and not blind. Importantly, witnesses (and their spouses or civil partners) should not be people who stand to benefit from your will. If a beneficiary or their partner acts as a witness, they will lose their right to inherit anything left to them in your will.
Common mistakes to avoid
Some common errors include:
- Not having two witnesses present at the same time.
- Allowing a beneficiary or their spouse/civil partner to witness the will.
- Failing to sign the will in ink.
- Making alterations after the will has been signed and witnessed.
Such mistakes can lead to disputes or even make your will invalid.
Why following these rules matters
Sticking to the formal requirements for signing and witnessing a will helps ensure your wishes are carried out and reduces the risk of family disagreements or legal challenges. By following the law, you protect your estate and those you care about. If you’re unsure about the process, it’s a good idea to seek advice to make sure your will is properly executed.
Types of Will and Codicils
When making a will in the UK, it’s important to understand the different options available and how they might suit your needs. The main types of wills and codicils include simple wills, mirror wills, joint wills, and codicils for making changes.
Simple Wills are the most straightforward, typically used by individuals with uncomplicated wishes about who should inherit their assets. They set out who gets what and name executors to carry out your instructions.
Mirror Wills are usually made by couples, such as spouses or civil partners, who want to leave their estates to each other and then to the same beneficiaries. They are almost identical but are two separate documents. Mirror wills are convenient but can be changed independently by either person at any time.
Joint Wills are less common and involve two people making a single will together. Unlike mirror wills, a joint will cannot be changed after one person dies, which can restrict flexibility for the surviving partner.
A codicil is a legal document used to make minor changes or additions to an existing will without writing a new one. Codicils are useful if you want to update your will, for example, to change an executor or add a new beneficiary. However, if you need to make major changes, it’s usually better to make a new will.
Each type has its pros and cons. Simple wills are easy to update and understand but may not suit complex family situations. Mirror wills offer simplicity for couples but don’t bind the survivor to the same wishes. Joint wills can provide certainty but may limit future flexibility. Codicils are practical for small updates but can cause confusion if too many are added over time.
Choosing the right will depends on your personal circumstances, family setup, and how you want your estate to be distributed. For more details on the legal requirements, you can refer to the Wills Act 1837, which sets out the rules for making valid wills and codicils in England and Wales.
Changing or Revoking Your Will
Keeping your will up to date is essential to ensure your wishes are accurately reflected, especially after significant life events such as marriage, divorce, the birth of children, or changes in your financial situation. If your circumstances change, you can update your will either by making a new will or by adding a formal amendment known as a codicil. It’s important to follow the correct legal process when changing or revoking your will to avoid accidentally invalidating it.
A will can be revoked (cancelled) in several ways. The most common methods are making a new will, destroying the existing will with the intention of revoking it, or, in some cases, by getting married or entering a civil partnership. For example, under Section 18 of the Wills Act 1837, marriage or civil partnership generally revokes a previous will unless the will was made in contemplation of that marriage or partnership.
When making any changes, it’s crucial that you still have testamentary capacity, meaning you understand what a will is, what property you have, and who your beneficiaries are. Failing to follow the correct procedures or lacking testamentary capacity can result in your will being challenged or declared invalid.
To ensure your will always reflects your current wishes and remains legally valid, review it regularly and seek professional advice when making updates or revoking it.
Why Making a Will is Important
Making a will is one of the most important steps you can take to ensure your wishes are respected after your death. If you die without a will – known as dying without a will (intestacy) – your estate will be distributed according to strict legal rules, rather than your personal preferences. This can lead to unintended outcomes, such as loved ones missing out on inheritance or assets not going where you intended.
A clear, legally valid will can help avoid confusion and reduce the risk of family disagreements. By setting out your wishes in writing, you make it easier for those you leave behind to understand your intentions, which can help prevent challenging a will and disputes among family members.
Making a will also has important implications for inheritance tax. Careful planning can help minimise the tax burden on your estate, ensuring more of your assets go to your chosen beneficiaries. For more information about how inheritance tax works and the relevant laws, including the Inheritance Tax Act 1984, you can visit Inheritance tax in the United Kingdom – Wikipedia.
Ultimately, having a will in place gives you peace of mind, knowing that your estate will be handled according to your wishes and that your loved ones will be looked after in the way you intended.
After You Make a Will: What Happens Next
After you have made your will, it’s important to take a few practical steps to ensure your wishes are followed when the time comes. First, keep your will in a safe but accessible place – many people choose to store it with a solicitor, at home in a secure location, or with a bank. Make sure your executors (the people you’ve chosen to carry out your wishes) know where the original will is kept, as they’ll need it after your death.
It’s a good idea to let your close family or trusted friends know that you have made a will and who the executors are, so they can act promptly when needed. You don’t have to share the details of your will, but ensuring someone knows it exists and where to find it is crucial.
When you die, your executors are responsible for ensuring your will is followed. The first legal step is usually registering a death, which provides the necessary paperwork to begin managing your estate. After this, your executors may need to apply for probate – a legal process that gives them the authority to deal with your property, money, and possessions. For an overview of what’s involved, see dealing with an estate (probate).
By keeping your will safe and making sure the right people know about it, you help ensure your wishes are respected and the legal process runs smoothly for your loved ones.
Related Considerations When Making a Will
When making a will, it’s important to think beyond simply dividing your assets. There are several related considerations that can help ensure your wishes are respected and your loved ones are protected.
Funeral Wishes
Many people choose to include their funeral preferences in their will. While these wishes are not legally binding, clearly stating them can help guide your family and reduce uncertainty at a difficult time. For more on how to express your preferences, see our guidance on funeral planning.
Property Ownership and Home Swaps
How you own your home or other property can significantly affect what happens to it after your death. For example, if you own property as joint tenants, it will automatically pass to the other owner, regardless of your will’s instructions. If you’re considering transferring property or engaging in property and home swaps, it’s important to understand the legal steps and how these actions might impact your estate planning.
Inheritance Tax
Inheritance tax can affect the value of what you leave behind. The rules are set out in The Inheritance Tax Act 1984, and it’s worth reviewing the basics of inheritance tax to see if your estate might be liable. Planning ahead can help minimise the tax your beneficiaries may have to pay.
Trusts and Protecting Beneficiaries
Setting up a trust within your will can help protect your assets and provide for beneficiaries who may need extra support, such as children or vulnerable adults. Trusts can be especially useful for managing complex family situations or ensuring long-term care. To learn more about trusts created by wills and their legal implications, you can also explore this detailed discussion of Trusts in the context of UK wills.
By considering these aspects when making your will, you can help ensure your wishes are followed and your loved ones are provided for in the way you intend.
