Making your will, explained

What a will does, who it needs, and how to make one that holds up

This note explains, in plain terms, what a will is, the decisions you need to make before we draft yours, and what can go wrong with a home-made one. It is general information, not advice on your own circumstances; advice on what your will should say is given separately, in writing, once we have taken your instructions.

Thinking about a will? Read this first

Most people who come for a single will are better served by the Family Estate Plan — where the will, both lasting powers of attorney, a property trust and letters of wishes are prepared together in one engagement, and the documents are included rather than billed one by one. See how the plans work →

What a will actually does

A will is a legal document that says who deals with your affairs when you die, and who receives what. It only takes effect on death, and you can change it at any time before then. A clear, valid will does four things: it appoints the people who will administer your estate (your executors); it names who is to benefit (your beneficiaries); it can appoint guardians for children under 18; and it can set out wishes about funeral arrangements and the like. Without it, the law decides all of this for you.

What happens if you don’t make one

If you die without a valid will you die “intestate”, and a fixed set of statutory rules — the intestacy rules — decides who inherits, in a strict order, regardless of what you would have wanted. Two points catch people out most often:

—An unmarried partner inherits nothing under the intestacy rules, however long you have been together. They would have to bring a court claim to be provided for.
—A surviving spouse may not inherit everything. Where there are children and the estate is large, the estate is split between spouse and children on a statutory formula — which can force the sale of a home.

The decisions to make before we draft

Your executors

The people who will collect in your assets, pay debts and tax, and distribute what is left. Choose people you trust who are willing to act; two is sensible, and they should be younger than you where possible. They can also be beneficiaries.

Your beneficiaries and gifts

Who gets what. This can include specific gifts (an item, a sum of money) and the “residue” — everything left over. Think about what happens if a beneficiary dies before you, so the gift does not simply fail.

Guardians for young children

If you have children under 18, your will is the place to say who should look after them. Without it, the court decides. Ask the people first.

Whether a trust is needed

A will can create a trust on death — for example, to provide for a surviving spouse for life with children taking afterwards, or to hold a gift for a child until they are older. We will advise whether that suits you. (See our note Family property trusts, explained.)

Making it valid — the formalities that matter

A will of an adult in England and Wales is valid only if it is in writing, signed by you, and your signature is made or acknowledged in the presence of two witnesses present at the same time, who then each sign in your presence. The rule that trips people up most:

A witness, or the husband, wife or civil partner of a witness, cannot benefit under the will. If they do, the gift to them fails — though the will itself stays valid. Never have a beneficiary, or their spouse, act as one of your witnesses.

You must also have the mental capacity to make a will and must know and approve its contents. Where there is any doubt about capacity — through age or illness — we may suggest a doctor’s assessment at the time of signing, which protects the will against a later challenge.

Keeping it up to date

A will is not a once-and-done document. Marriage automatically revokes an earlier will (unless it was made in contemplation of that marriage), and divorce changes how gifts to a former spouse are read. Review your will after any marriage, divorce, birth, death or major change in your assets. Never amend a signed will by crossing things out or adding notes — that can invalidate it. Changes are made by a formal “codicil” or, more usually, a fresh will.

In short

A will decides who administers your estate and who inherits — without one, the intestacy rules decide, and they may not match your wishes.
The big decisions are executors, beneficiaries, guardians, and whether a trust is needed.
Validity turns on signing correctly in front of two independent witnesses — never a beneficiary or their spouse.
Review it after any major life change; marriage revokes an earlier will.

This note is general information and does not constitute advice on your own circumstances. We will advise you on the contents of your will in writing before it is signed.

Barraj Legal — a trading style of Rhys Johns, a barrister authorised & regulated by the Bar Standards Board. Sophia House, 28 Cathedral Road, Cardiff CF11 9LJ