FAQs

A Will (last Will and testament) is a legal document in which you can determine what happens to your estate when you die. It can also nominate who you would like to act as your Executors, and who you would like to appoint as Guardian for any children you have parental responsibility for.

A Will is only valid if it is signed by the Testator (whose Will it is) and by two witnesses, who may not be beneficiaries of the Will, or a partner of a beneficiary. A Will may fail either partially or in its entirety if care is not taken to attest the document properly.

A Will is only useful if it can be found upon the Testator’s death: As such it is important to have a conversation with your Executors so that they know that you have a Will, and where it is kept. My Fortress are partnered with The National Will Safe, who provide an excellent service that keeps your Will safe and easily accessible. It is otherwise advised that you keep your Will in a waterproof and fireproof safe.

Your ‘estate’ is everything you own at the time of your death that you are a legally entitled to give away, minus any liabilities. This might include: Real estate; Bank and savings accounts; Investments; Businesses or shares; Or personal possessions (also known as chattels).

Jointly owned assets such as joint bank accounts or property held as joint tenants does not form part of your estate, and these pass via “survivorship rules,” not via a Will.

Also not included, are life insurance policies where you have previously nominated a beneficiary. Similarly “death in service” benefits and pensions are also normally nominated, as thus do not form part of your estate.

A Testator is simply the subject of a Will. If have a Will prepared, you are the Testator of that Will.

An Executor is somebody who is nominated to administer the Testator’s estate. Up to four Executors can be appointed to act at the same time. They have a list of duties to conduct after the death of the Testator, including but not limited to:

• Obtaining the Will.
• Obtaining a grant of probate
• Ensuring that the estate property is secure and protected, as soon as possible after the death.
• Identifying all that the estate comprises (E.G the contents of bank accounts, and qualifying insurance policy proceeds and pension payments).
• Valuing the assets. Some elements of the estate may require specialist valuation (such as a house, a collector’s item worth over £5000, or shares in a company).
• Collecting all assets and money due to the estate (including property).
• Paying any outstanding taxes and debts out of the estate.
• Distributing the estate to the people who are named as beneficiaries in the Will.

Depending on the size of your estate, and complexity of your wishes, an Executor may have to complete complex legal requirements to execute your Will and is responsible to all your beneficiaries. If you appoint friends or family to the role, they will not (automatically) be compensated, but will be able to reclaim any expenses incurred by them in the administration of your estate, including probate fees, as until the grant of probate is obtained, all the Testator’s assets
are frozen.

If you feel that this would be too onerous for your chosen executives, you can appoint a professional (for a fee that is usually taken from the Testator’s estate) to act alongside, or instead of your Executors. This is sometimes advisable in cases of a complex estate, or a situation where no suitable Executors can be found.

Probate is the legal process where a court verifies the validity of the Will, and then allows for the process of dealing with the Testator’s estate, including their finances and assets, and then distributing the estate among beneficiaries.

With a valid Will in place, the Executors are responsible for probate. Executors will be issued with a “grant of probate” which allows them access to the deceased’s assets, in order to discharge their duties as Executors by settling any debts and tax liabilities on the estate, then distributing it to the beneficiaries according to the Will.

Find out more about applying for probate on gov.uk.

Trustees people who are responsible for the parts of your estate that are held on trust for beneficiaries. For example, until a child is old enough to inherit; or where somebody has been given a ‘right to occupy’ property, or an ‘interest in possession’ during their lifetime. Executors and Trustees are usually the same people, however if your Executors are all beneficiaries of the Trust it is important to appoint an additional ‘independent’ Trustee. You may also wish to appoint separate Trustees (perhaps even a professional) to manage a company that is within your estate.

Most of the time spouses and partners are chosen as Executors, because they usually know the Testator the best, followed by children and other close relatives. There is no rule against a beneficiary being an Executor. However there are numerous individual reasons why this may not be an advisable, or even possible appointment. As every individual’s circumstances are different, there are no absolute rules regarding who you ought to choose to act as your Executor. However, there are certainly some key values and characteristics that make somebody more appropriate to consider: 

Trust

Beyond all else, you must choose somebody you trust. Not only are you relying on this person to execute your wishes, but you are also empowering them to deal with HMRC and financial institutions. You must trust that they will reflect your wishes in dealing with your Will and consult with your beneficiaries in what will likely be quite a stressful time for all involved. 

Competence: 

Depending on the complexity of your Will or the size of your estate, there may well be complicated legal affairs to deal with, alongside a lot of paperwork. It is recommended that you choose someone who would be up to the task of administering your estate. 

Location/accessibility:

It's all well and good to choose a trustworthy and competent friend to be your Executor, but if they are living in the Australian outback without an internet connection, they would likely make a rather poor Executor. That’s not to say that all Executors must be permanently proximate, or reside in the UK, though the position of Executor can be onerous, and may require a considerable commitment of time to discharge this duty. 

The Executor should know the Testator well and be able to communicate the Testator’s wishes to beneficiaries. They should be organised and competent enough that they would be able to complete their duties in a timely and proficient manner.

To make a Will you must be over 18 and have 'testamentary capacity'. This is the mental capacity to understand and make a Will. You must be able to understand:

1. The nature and effect of making a Will
2. The size and nature of your estate (what you own)
3. Any moral claims that you ought to give effect to i.e. the claims that any family members may have on your estate.

You must also not be suffering from any mental disorder that effects your ability to make a Will.

Initially you must determine how you own the property, and whether it will fall into your estate. It is likely that if the property is owned by two or more people that it is either as "joint tenants" or as "tenants in common". If you hold your home as joint tenants then when one owner passes away the property will automatically pass to the surviving owner and is not assigned by a Will. 

If you own as tenants in common then you own a discrete share in the property, and as such may leave this share in your Will to whomever you wish. My Fortress can help you if you are unsure how your property is held, and if appropriate, help you to sever your joint tenancy to become tenants in common. 

Your Will can be used to gift your home to any of your beneficiaries or leave it to form part of your residuary estate to be left in shares between multiple beneficiaries. You can also leave a property on trust, so that a beneficiary can live in it for a set period of time, before it is released to its final beneficiary (remaindermen) to own.

If you own a property with another person, it is usually as “joint tenants” or as “tenants in common”

What is a Joint Tenancy?

This effectively means that the co-owners of the property own the whole of the property together, rather than owning separate distinct shares. 

On the death of one co-owner, their share automatically passes to the survivor(s) under the doctrine of ‘survivorship’, and is not passed via the Testator’s estate, in a Will. 

What are Tenants in Common?

In contrast, owning property as tenants in common means that each co-owner has a distinct share in the property. This share can be any split, and in the absence of a specification, the presumption is 50/50. The doctrine of survivorship does not apply to tenancies in common and, therefore, co-owners may leave their interest in a property by Will.

Tenants in common can therefore benefit from greater flexibility and it’s not surprising for some joint tenants to wish to convert their interest into a tenancy in common. This process is called a ‘severance’ of the joint tenancy. My Fortress can help you sever a joint tenancy as part of your estate planning.

A legal Guardian is somebody you appoint to take care of your children if you pass away before they reach the age of 18. My Fortress allows you to add Guardianship provisions in your Will, allowing you to appoint a Guardian for any dependants (that you have parental responsibility for). This does not automatically include remuneration, though you can also include money in trust for the benefit of your child while they are in the care of the Guardian, and gifts to the Guardian themselves. 

If you intend to assign Guardianship in your Will, it is vital that you have a conversation with them about this, and make sure they agree to the position. This is important because Guardianship is a significant responsibility. Guardians named in a Will also have the right to turn down the duty.

It is also important to discuss your decision with anyone else with an interest in your children’s welfare as they could potentially challenge your choice of Guardian. If there is a challenge, this may need to be decided in court, which is an experience to be avoided if possible.

If there are no surviving parents, and nobody else has parental responsibility, your Will can dictate who becomes the legal Guardian(s) of any surviving children under the age of 18. Although this is your choice, a great amount of thought ought to be placed into this decision. You should think about the child’s wellbeing as a paramount consideration, as well as the Guardians’ location, willingness to act, and practical considerations such as their health and financial situation. People tend to choose relatives such as the child’s grandparents or aunts and uncles, but this is not always the best choice for some families. 

Here are some important questions to ask when you are considering Guardianship:

• Do your children have an established relationship with the people you are appointing as Guardians?
• Where your children will live – Will this necessitate a change in schools, will they still be able to see their other family and friends?
• Can the proposed Guardian offer your children the love and care they need? 
• Do they have any medical conditions that might prevent them from acting as a Guardian?
• If the value of your estate won’t cover it, will your chosen Guardian be able to afford the expense of raising your children?
• Do the Guardians already have children? If not, would they be happy taking on a different lifestyle that includes children?
• Do the proposed Guardians have similar beliefs, morals and style of living as you?

It is imperative to note that Guardians may not accept their appointment, so it is of the utmost importance to discuss whether or not they would be willing to act as Guardians before you make arrangements formally in your Will. 

Get in touch to discuss how proper drafting of your Will can ensure that your Guardianship wishes are executed.

It is common for families to choose the same people to be Guardians of their children and Executors of their Will. A lot of the key characteristics of a good Guardian are common with that of an Executor: A person you trust, who is close in proximity and familiarity, and (on reflection of their health and lifestyle) is willing to act. This is not a fixed rule, however, as there are copious reasons in family dynamics that may make this choice an inadvisable one (for example, a divorced parent may be a suitable Guardian, but not an Executor of your Will).

Parental responsibility is a legal concept encapsulating the rights, duties, powers and responsibilities that a parent or Guardian has in relation to their child. This is set out in the Children Act 1989. The birth mother is automatically assumed to have parental responsibility. The father has parental responsibility if: He married the birth mother; Or he appears on the birth certificate. Fathers without parental responsibility can acquire it through a written agreement with the mother or applying for a court order.

• Safeguard the family home

Intestacy rules mean that if you do not write a Will the family home could be split between beneficiaries you wouldn’t have chosen. This may even mean family members being forced to move out of a house. 

• Estate planning

A valid Will can be drafted in a way to minimise the estate’s liability to Inheritance tax, as well as being efficient for beneficiaries. 

• Provide for dependants (including unmarried partners and step children)

With no automatic right to inherit, it is important to draft a valid Will to protect your loved ones. 

• Appoint Guardians for children

A properly drafted Will ensures that your nomination of Guardianship for your children is legally valid. 

• Decide who should settle your affairs (Executors)

Remove any ambiguity for your loved ones by providing specific instructions of what you want to happen to your estate, and just as importantly, who should manage the affairs of your estate. Giving your Executors time to prepare and discussing your wishes with them will undoubtedly save time and worry in the future. 

• Streamline the probate process 

Although almost all estates go through probate, estates without a valid Will can make this a long, expensive and tiresome exercise. Drafting a Will confirms who you wish to administer your estate and gives instructions so that the court does not decide for you. 

• Choose who will (and will not) inherit 

You can use a Will to give specific gifts, or assign to a beneficiary a portion of what is left after all gifts and taxes are paid (the residuary). You can also use a Will to ensure that some people don’t receive anything. Complicated family dynamics are not uncommon, and there are many reasons why Testators use their Will to favour certain beneficiaries more than others. 

• Record funeral wishes

 Having your funeral wishes confirmed in your Will can remove the burden of a difficult decision for your loved ones.

• Support a charity or worthy cause with a legacy

When deciding how you wish to divide one’s estate, many feel that they would like to help worthy causes. You are entitled to leave any part of your estate to whomever you wish, and My Fortress has well established precedents to allow you to leave a legacy to charity in your Will. 

• Minimise the potential for family disputes

 Regrettably dividing an estate can lead to dispute among family members and beneficiaries. Drafting a Will eliminates the guesswork as to your wishes for your estate. A professionally drafted, well documented Will can help to minimise the chance of a dispute arising as to your wishes.

• Those with dependent children: In addition to making financial provision for your dependants, a Will can also nominate a legal Guardian to care for them.

  If a parent with sole parental responsibility dies intestate, the courts may have to decide who becomes the child’s legal Guardian. It is important to make your wishes clear and legally certain by writing a Will. [link]

• Those who are not married to their partner. The rules of intestacy do not make provision for partners who are not married or in a civil partnership. These rules are strict, and without a Will in place, they will dictate how the estate is distributed. This can have dramatic implications on partners who may have to move out of previously shared homes. 
• Those with concerns about inheritance tax. There are several exemptions to IHT that can mitigate the liability of the estate. Drafting a professional Will with advice can dramatically increase your estate planning possibilities.
• Those whose circumstances have changed. Ensuring that your Will reflects your current circumstances is of great significance. Altering your Will to take care of new children or grandchildren or changing substance of specific gifts can be often overlooked, as well as the fact that Wills are usually automatically revoked upon marriage. Your financial situation also may have changed to such a degree that a once well-planned estate is now subject to unnecessary tax liability. 
• Those that have specific funeral wishes. Removing any doubt as to your funeral wishes by leaving them in your Will can avoid family conflict and take the weight of the decision off their shoulders. 
• Those that own property with someone else.

If you own your property as 'tenants in common', the rules of intestacy apply unless you have a Will. This may pass the ownership in the property to somebody who won’t use it effectively, and adversely impact the other owners. 

However, if you own your own property on a 'joint tenants' basis, upon your death the ownership automatically passes to the other joint tenant under 'survivorship' rules. 

Drafting a Will with a professional can ensure that your estate effectively distributes your interests in properties in a methodical and efficient manner. My Fortress can also help you sever a joint tenancy so that you can include your interests in property in your Will.

Unsurprisingly, in our view, everybody should have a Will drafted. No matter what the circumstances, it is always best to be prepared. There are many misconceptions that lead people to think they do not need a Will:

“I have no money, so I have nothing to give away”- A Will does not only distribute your estate, it can also contain appointments of Guardians for children, arrangements for pets and funeral requests. Even without the need for any of these, a Will makes it clear who should be dealing with the administration. In lieu of this, involved parties could find it hard to make choices without guidance, and face increased hardship with probate if the Testator died intestate. A final refutation of this point of view is that you have no idea the value of your estate in the future: you might well have money to disburse by the time of your death. It is even possible that this enrichment happens after your death: For example, if the death was caused by the negligence of somebody else, your estate could be worth a considerable sum if the Executors in your Will are able to make a civil claim on behalf of your estate.

“All my money Will go to my partner anyway”- The rules of intestacy MIGHT mean in your specific circumstance that all of your property will pass to your partner, but if you are unmarried, or have children (even from a previous relationship), the rules are strict and could considerably change the amount that your partner receives (it could even be nothing). The laws of intestacy also do not treat stepchildren as if they are biological children, which could be a nasty surprise if beneficiaries are expecting the same share as their siblings. A Will takes any ambiguity out of the situation and allows you to bequeath your property exactly how you wish. 

“I know my estate falls under the NRB threshold, I don’t need to think about estate planning” – even if you could guarantee that your estate will remain exactly the same, good estate planning doesn’t only allow you to plan around IHT, but also ensure that loved ones do not lose out on any means-based benefits by using trusts to distribute assets in your Will.

1. Make a list of financial assets (e.g. property, savings, investments, life insurance) and any liabilities (e.g. mortgage, loans). Confirm whether your life insurance is nominated to a specific beneficiary or held in trust. 
2. Have names and addresses of people you may want to include in your Will as beneficiaries, Executors / Trustees and Guardians.
3. Think about who you want to benefit from your estate and whether there are specific gifts of your personal possessions you would like to make.
4. Think whether you would like to include funeral wishes in your Will.

A Will must be correctly attested (signed) in order to be valid, and if it is not the Will could entirely or partially fail at the probate stage. It is exceedingly important that the Testator, and their witnesses get the attestation process correct. 

The signing involves 3 people including 2 witnesses:

• The person signing the Will (usually the Testator)
• 2 Witnesses

The person signing must be present throughout the process.

A Witness must be:

• Over 18
• Someone who is not an Executor or a Beneficiary of the Will
• Someone who is not the spouse or civil partner of the above
• Someone of “sound mind” who is capable of understanding the nature and effect of witnessing the signing.
• Able to see (not blind)

Your Will must be signed by two witnesses, in your presence, at the same time as you sign the Will.

If a witness is a beneficiary (or the married/civil partner of a beneficiary), the Will is still valid, but the witness/beneficiary would not be able to inherit from the Will. Witnesses do not need to be professionals, but they must not stand to gain from the Will. Neighbours and family friends are often an advisable choice.

We advise that you should review your Will every 3-5 years or sooner if there are major changes to your circumstances, E.G: -

• Marriage/divorce – Your Will may have been revoked in part or in whole.
• Trouble in a marriage or civil partnership (both of the Testator and of the beneficiaries) – You should consider where your money might go (even after the beneficiary has deceased), and whether this is still in line with your wishes.
• Birth of further children or of grandchildren. This may change gift amounts, the form they take, or even give rise to the need of Guardianship provisions. 
• Changes to the choice of Guardians or Executors. 
• Estate Planning requirements – financial changes which affect your Inheritance Tax liability, or a need to protect assets.
• About to go on holiday, or imminent surgery / sudden illness.
• Wayward beneficiaries – a fresh consideration of the need to protect certain beneficiaries from wasting their inheritance (there are a number of estate planning methods such as trusts that can be invaluable in this situation).

If a Testator dies without having a valid Will, it is called “dying intestate”. This means that the rules of intestacy would govern how the estate is divided. There is a commonly held misconception that intestate estates are settled to the instruction of surviving family members: this is not true. Thousands of people in England and Wales die intestate every year, failing to leave a Will can lead to a huge amount of hardship and extra expense for family members and loved ones. Although navigating probate with a Will can be cumbersome, having to do so for an intestate Testator can be considerably more difficult and expensive. 

The intestacy rules are a strict list of who inherits in a case of intestacy. In some cases, this can mean that the money goes to the government if you do not have any qualifying beneficiaries.  Having a valid, professionally drafted Will is a certain way to avoid intestacy.

If you are married or in a civil partnership, the first beneficiary would be the surviving partner, although depending on other surviving relatives, and the total size of the estate, there may be other beneficiaries..

Major issues can occur for unmarried couples as the surviving partner won’t automatically have a claim in the way that a married partner would. The process for claiming can be slow and there is no guarantee of success. Similarly, if you are separated but not divorced from a spouse, they would still have an automatic claim to your estate unless you specify otherwise in a valid Will.

If a Testator dies intestate, a close relative can apply to the Probate Registry to be officially recognised as responsible for your estate (like a named Executor in a Will does). This process is not always a smooth one and a “grant of letters of administration” is not always issued. The best way to avoid this inconvenience is to have an up-to-date and valid Will in place.

The intestacy rules can be found here gov.uk

Not necessarily. Under the current intestacy rules, it depends on the size of your estate and whether you have any children.
Intestacy causes delays and unnecessary complexity. For families with children, the division of an estate can create co-ownership problems and an Inheritance Tax liability if the Testator dies intestate. Making a valid Will ensures that you can avoid intestacy and more effectively plan your estate to minimise unwanted problems in the future.

Married couples should have two Wills to ensure that each individual’s wishes are fulfilled. Joint Wills are legally valid but are for practical reasons not favoured by practitioners as they are often seen to be more trouble than they are worth when other means of estate planning offer the same benefits for considerably fewer drawbacks. 

A Will is a highly personal document, though if spouses have the same wishes, a mirror Will is an option. In a mirror Will, the content of both Wills is nearly identical, except for the name of the Testator.

I am getting married, do I need a will? 

Yes, absolutely. Not only is your marriage likely to entail a change of circumstances where you should consider getting a Will anyway; any previous Will is automatically revoked unless it is written specifically in contemplation of marriage. This could mean that your estate is divided according to intestacy rules.

It is important to review and update your Will if your circumstances change (such as marriage, the birth of children, or divorce).

In England & Wales, your Will gets automatically revoked if you get married or remarried, unless the Will is specifically written in contemplation of the marriage.

If you get separated, your Will remains valid and unaffected. It is therefore of the utmost importance to review your Will if you are separated but not yet divorced. 

If you get divorced, in your Will your divorced spouse would be treated as if they died on the day of divorce (any appointments made, or gifts bequeathed would be nullified). Regardless, it is advisable to review your Will after a divorce to make sure you have made provision for alternative appointments or beneficiaries.

Generally, stepchildren are not included in the class of persons “children” in a Will, and hence they would not be provided for. The definition of “children” as a class is usually seen to be limited to genetic and adoptive children, but not stepchildren. As such, it is important to be certain that your Will caters for all of the beneficiaries you wish it to.

Similarly, stepchildren are not provided for in the rules of intestacy and would not be included in the list of beneficiaries of an intestate estate.

Your Will is an important document that needs to be kept safe. If it is lost or tampered with by others this could create problems at Probate and your wishes may not be carried out. We offer a secure storage service to give you peace of mind.

As only the original version of a Will (or an LPA) is the legally binding version, it is of paramount importance that you keep your documents safe. Copies, scans and photographs are not valid, as they do not have the original signatures on them. A grant of probate requires the original Will, and your Executors may be held up from administering your estate if the original Will cannot be found. This can, foreseeably, cause unnecessary stress and difficulty. It is also of importance to note that a Will can fail if there is evidence of tampering by others, as such the original document should be stored safely and securely. 

It is recommended that you do not store your Will in a bank’s safety deposit box, as it can be exceedingly difficult for Executors to access the contents of this box after the death of the Testator. You can store the document nearly anywhere, but we recommend the storage service offered by the National Will Safe. When you store your Will with them, you can access it whenever you need, and replace the document for no extra charge if you make a new Will.

While your documents are with National Will Safe they are fully insured against loss or damage. If anything happens to your documents, they will be recreated and replaced for you, free of charge. If your document is lost or damaged at the time it is needed, or its loss or damage only becomes known at the time it is needed then they are insured for up to £2million to compensate anyone who loses out or incurs costs as a result.

National Will Safe provide you with plastic identity cards for you and your Executors. They display your name, a unique storage reference number and our contact details.

Cancelling your Will is known as revocation.  Intentionally destroying your Will cancels it, though care must be exercised to ensure that all copies are also destroyed to avoid uncertainty. 

Alternatively, making a new Will cancels any previous Will – a well drafted Will should always include a clause revoking all former Wills.