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Making a legally valid will

What is a will?

A will is a legal document that allows you to choose how you would like your estate to be distributed after your death. Up to half of the UK population either do not have a will or have one that is no longer valid. Most adults will wait until they get older to create a will. It is best to make a will as soon as possible as we do not know what could happen in the future and making a will is the best way to protect your loved ones in a time of need.

Rules of intestacy

A person who has died without a legally valid will, will die intestate. This means that the estate of the person who has died will be shared out using the rules of intestacy. In the event this does happen, only married or civil partners and some other close relatives can inherit under the rules of intestacy. It is important to note that if you are cohabiting with someone else, (living with a partner) they are not protected in the same way as married couples or those in civil partnerships. However, the rules are different for assets owned jointly. Under the intestacy rules, your estate will be shared out as follows:

Married couples/civil partners/children of the family

It is important to note that even if you and your spouse/civil partner have informally separated, (i.e., not had a divorce or dissolved your civil partnership) they can still inherit under the rules of intestacy.

If the person who has died estate is valued at more than £270,000 and there are surviving children, grandchildren or great grandchildren, the partner will inherit:

  • All personal chattels (personal property and belongings) of the person that has died
  • The first £270,000 of the estate, and
  • Half of the remaining estate.

This means that if the value of the estate is less than £270,000 then the entire estate passes to the spouse/partner.

If you do not have a spouse or any children, then other family members including parents, siblings etc may inherit depending on the circumstances.

What events will invalidate a will?

  • If you decide to marry/enter into a civil partnership this will revoke any previous wills and you will need to make a new will
  • If you create a new will this will invalidate any previous wills that you made

What should you include in your will?

You can appoint a guardian for your minor child/children in your will. The person you appoint as your child’s guardian will make decisions on behalf of your child. These decisions may be medical, educational etc. The guardian will also be responsible for looking after your child/children’s daily needs.

You should also consider how you want your digital assets to be distributed after your death. A digital asset covers a range of belongings for example social media accounts or any cryptocurrencies you have purchased.

You should include any physical assets in your will, including your home or savings for example.

Steps to ensuring your will is legally valid

In order for your will to be legally valid you must:

  • Be over the age of 18
  • Have the intention of making a will i.e., make it voluntarily
  • Have the relevant capacity
  • Make it in writing and sign it in the presence of two witnesses
  • Have it signed by your two witnesses, in your presence

Please note that both witnesses must be present when you sign the will, but not for each other’s signatures. It is important that your witnesses or their married partners are not beneficiaries in your will. A beneficiary is someone who directly benefits from your will. For example, if they are to receive a gift in your will.

What do we mean by ‘have the relevant capacity’ to make a will?

The person making the will must have the ability to understand the impact of making a will. For example, understanding the impact that it will have on their estate and understand the consequences of excluding a person from a will, for example. They must not be suffering from any mental disorder at the time they make their will.

As people are living longer, capacity challenges are increasing as more people are suffering from dementia related illnesses. It is important to remember that just because a person is suffering from an illness, that this automatically means that they do not have the capacity to make a will. Each case will need to be assessed on an individual basis.

Contact Us

View our wills page for more information, to meet the team, understand our fees, a glossary to help understand the wording around wills as well as frequently asked questions.

Ensuring your will is legally valid can be quite complex. If you are worried about the validity of your will then please contact our specialist wills team, for a free quotation or to arrange an appointment on 0191 232 8167.

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