Wills
Frequently Asked Questions

A Will is a document which enables a person to give specific instructions for the disposal of his or her estate on death.

Once your instructions have been received, we aim to send your Will to you within 7 working days. If you require your Will sooner than this, we will endeavour to send your Will to you the next day.

Yes, of course, providing you are of sound mind.

Spouses/partners often choose to appoint each other in the first instance, but back up executors should also be considered. It is possible to appoint family members or friends even if they are mentioned as beneficiaries in your Will. Some people prefer to appoint a professional person. Please note that if you are leaving any part of your estate to children under the age of eighteen, at least two back up executors should be appointed.

Some of the duties of an executor include:

  • obtaining details of your assets and debts
  • preparing probate papers and the HM Revenue and Customs account for inheritance tax
  • arranging the sale of your home and the contents
  • distributing your estate in accordance with your Will

If you have children under the age of eighteen, it is essential to appoint guardians.

If you get married or enter into a civil partnership after making a Will, the Will is automatically revoked unless the Will expressly states that it is made in contemplation of marriage/civil partnership. If you get divorced after making a Will, the Will remains valid but any gifts or appointment of your former spouse will fail.

If you have named a beneficiary in the policy documents then the proceeds will usually be paid directly to the beneficiary rather than falling into your estate. This may be beneficial for Inheritance Tax purposes and also means the monies may be released before Probate is issued. You are usually able to name your chosen beneficiaries by requesting a beneficiary nomination form from the policy provider.

Where a beneficiary predeceases you, their legacy or gift will usually fall back into your residuary estate unless you have made provision in the Will for another person to receive it.

You do not need to amend your Will simply to change your address. However, it is important that you inform us of any change of address in order for correspondence to be sent to the correct address.

If you have specifically gifted your home in your Will, you may wish to check with us whether your Will needs to be amended.

Your Will should be kept in a safe and secure place. We can store your Will for you.

You should review your Will at least every three to five years, or sooner if your personal circumstances change including the following:

  • Changes to family members – If there has been an addition to, or a death in your family, you may need to update your Will.
  • Separation – The effect is not the same as divorce, but you may still wish to revise your Will to reflect your change in circumstances.
  • Financial changes – It is important to keep an eye on the value of your estate to stay one step ahead of any Inheritance Tax liability and to also ensure that your estate is sufficient to provide for any legacies you may have left.
  • Property abroad – If you own property abroad, it is essential that you make a Will in that country to ease the administration of your estate. Different countries have different laws and any existing Will you have may only take into account your UK assets.

Yes. You and your spouse/civil partner can make separate Wills. We offer both Single Will and Mirror Wills options. The Mirror Wills service is suitable for couples (married, civil partners or co-habiting) who have very similar wishes on how their assets should be distributed. The two Wills will be mirror images of each other.

Our Single Will service is suitable for people who are single, separated, divorced/dissolved civil partnership or widowed/surviving civil partner. Single Wills are also suitable for couples who have very different wishes on how their assets should be distributed. Please discuss with us to find out which service is right for you.

If you do not have a Will when you die, you are said to die “intestate”. This means that the law will decide how you estate is distributed and for all sorts of reasons, this may not be the outcome you desired. Someone could receive a part or the whole of your estate who you would not wish to benefit and, it can take more time and money to sort out an intestate estate. A Will is the only way of making your wishes known when you die.

Yes. There is a minimum age limit for writing a Will. In England, Wales and Northern Ireland you must be over 18, and in Scotland you must be over 16. There is one main exception to this limit and that for members of the Armed Forces who are on active duty. They are able to make a special Will when they are 17.

There is no upper age limit for making a will.

To make a Will you must be over the minimum age limit and have “testamentary capacity” – often referred to as “of sound mind”.

Simply put in the context of writing a Will, it means you understand that you are making a Will and the effect that this may have on those who are dependent on you; and that you understand the extent of your assets/possessions/Estate.

Yes we can. If you let us know about your particular requirements, we can prepare a Will that will be effective and appropriate for your circumstances. We will give you guidance about the signing and witnessing of your Will. If you would like to have a chat about your needs please call us.

If you consider Scotland or Northern Ireland your domicile (your permanent home) you should have a Will drafted under the laws of Scotland or Northern Ireland. Wills drafted for people domiciled in England and Wales are drafted under English laws.

We have legal professionals who are able to write a Will that is suitable for you, irrespective of whether you call England, Scotland, Wales or Northern Ireland home.

Wills drafted by us under the laws of England and Wales, will only cover property or assets that you own in England or Wales.

Generally, if you own land, property or any other asset in a foreign country, you should have a Will prepared under the local law of that country. This is because of the complexities of foreign probate law: if you do not have a Will in that country, it may take a lot of time and money to sort out. It is for this reason that Irwin Mitchell has a policy of not including foreign assets in the Wills we write, unless we are absolutely certain that the legality and authority of the Will is going to be recognized.

Yes you can: please let us know what you would like us to change, either by telephone or by hand altering the copy we have already sent you and returning it to us. We will then make the appropriate changes and send you another copy for approval and signing.

Not necessarily. When we receive your Will instructions, we will look at your age and circumstances, (if you already have a very young child, for example), and we will write the Will in such a way as to accommodate future children, whilst naming children you already have.

We strongly advise against this as it can provide grounds for a claim against your estate later or raise questions regarding the validity of the execution (signing & witnessing) of your Will. All our Wills include clear signing instructions which outline who can or cannot witness the signing of a Will. If you have any doubts about who can be a witness, please call the team.

There are several options here for protecting your children’s inheritance if you die before your spouse/civil partner/partner. The choice can depend upon the age of your children when you die and what kind of provisions you would like to make for your spouse/civil partner/partner.

We are able to offer a special Will called an Asset Protection Will.

This is a sad event which unfortunately happens more often than people think. This situation is one of the instances when we recommend that you should review your Will. Depending on how you original Will was drafted, it may not always be necessary to re-write it, as it may include wording which takes the death of a beneficiary into account and names someone else to take their place. If you find yourself in this situation please give us a call and we will discuss your choices with you.

Your inheritance is a gift to your beneficiaries and it is important that such a gift is given without stress, worry or hassle for the recipients at what, for them, will be a difficult time. Professional people can assist almost immediately following death if they are appointed as Executor in your Will. They will be able to guide and support your beneficiaries as to the appropriate steps to take and to ensure that your estate is dealt with in a timely and professional manner.

The advantages of appointing a professional person as your executor include:-

  • Competitive rates which are negotiated with the beneficiaries following your death so everyone is happy before the professional person acts. 
  • A menu of service options so that beneficiaries can decide what level of help they wish to have. 
  • An independent professional body dealing with matters to avoid conflict between beneficiaries. 
  • Your estate is administered by a regulated professional person or firm which has stringent quality standards. 
  • The worry, stress and hassle taken away from your loved ones. 
  • Immediate advice and assistance provided following death so there is no delay or confusion over where to turn for help. 
  • A dedicated person dealing with your estate on hand to help and advice your family. 
  • A friendly and approachable team will be on hand to help every step of the way. 

This can be addressed in your Will. Our Will Writers work alongside specialists in our Court of Protection and Trusts teams to help families in this situation. We are able to provide advice to you before you die and help your family after you have gone for as long as they need us. Just call our team for a chat about the needs of you and your family.

No. Making a Will isn’t a once in a lifetime event, so you do not have to squeeze everything into it! A Will should reflect your circumstances as they are now, not what they might be in the future. We recommend that you should review your Will every five years or so, to make sure it is still appropriate for your circumstances.

As a rough guide, here are a few examples of additional situations where you may need to update your Will:

  • Change in family relationships: if you have married, entered into a civil partnership, started co-habiting, divorced, separated, had a civil partnership dissolved, been widowed or are a surviving civil partner. 
  • Family Growth: if you have become a parent, grandparent, see your family grow, or children have entered your life through a new relationship. 
  • Bereavement: if one of your main beneficiaries or someone named in your Will dies. 
  • Significant Change in your Assets: sometimes it is necessary to review your Will if your assets change or increase significantly. 
  • No Longer Accurately Reflects your Wishes: The main objective of a Will is to represent and communicate your wishes after you have died. If your Will no longer does this then you should update it. 

Inheritance Tax is a tax charged on the value of assets transferred on death. The value of any gifts made during the previous seven years may also be taken into account. Inheritance Tax is not currently payable on the first £325,000.00 (2009-2010). This is known as the “nil rate band”. However, Inheritance Tax is payable at 40% of any excess over £325,000.00. There is no Inheritance Tax payable on assets that pass to a spouse or civil partner.

Following a recent change in Inheritance Tax rules, on the death of the surviving spouse or civil partner, any unused nil rate band of the first spouse can be clawed back for the benefit of the estate of the second spouse. A transfer claim would involve ascertaining the proportion of the unused nil rate band of the first to die and then transferring that to be set against the taxable value of the survivor’s estate. The effect of this is that if none of the nil rate band had been utilised on the first death the estate of the survivor could claim back the full value of their unused nil rate band. Meaning, in effect, that the available nil rate band for the second estate would be £650,000 (being £325,000 x2). It must be remembered that the Inheritance Tax threshold has not been increased to £650,000.

Legacies left to any charity registered in the UK are exempt from Inheritance Tax.

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