Making a will

You must have mental capacity to write a will. Mental capacity means you can make informed decisions. This is explained in the Mental Capacity Act.

Mental Capacity Act (NHS)

If you are writing or changing a will, it can be known as testamentary capacity.

If you or your solicitor are unsure, it is important to get a report from your doctor to prove mental capacity. Proving mental capacity when writing a will protects it if your capacity is challenged.

If someone does not have mental capacity, the Court of Protection can write their will.

Court of Protection (GOV.UK)

A will says what happens to the things you own. It can deal with:

• money, property and belongings (assets)
• who the assets go to
• appointment of guardians for children under 18

You do not need to know the exact value of your assets as these could change.

If someone of any age receives assets or belongings from your will, they’re known as a beneficiary.

If you want to include more information about what you’d like to happen when you die, you might write a letter of wishes.

A letter of wishes could include:

• burial wishes
• belongings you’d like certain beneficiaries to have
• how you want a trust to be used

It should be separate from a will.

Your will can mention you have a letter of wishes which you’d like the executor to follow.

You can update a letter of wishes without changing your will. Changing a will is more complicated because you might need a solicitor.

Changing your will (MoneyHelper)

A letter of wishes is an informal document that sets out guidance for your executors and trustees.

Letter of wishes (Bequeathed)

A trust can be a way of protecting money and property for a disabled relative or friend.

A trust could help support a disabled person if they:

• receive means-tested benefits, social care or housing
• might struggle to make decisions about money and property
• are at risk of financial abuse or might be pressured to give others money

You can put money and property into a trust for a disabled person. Your chosen trustees manage the trust. This could be before you die or through your will.

Trusts and inheritance

You normally pay a solicitor to write your will. If you want to write a free or cheaper will, try charities.

A charity might suggest including a charitable donation in your will. This is your choice. You can use a charity without including a donation.

You can make or change a will online using free schemes:

Scope’s free will offer

How to make a will for free (Which?)

It can cost to change your will.

Writing a will should be accessible to you. You might ask a solicitor to:

• explain legal jargon
• discuss your will over the phone or video call
• come to your home or hospital

If you want to go to a solicitor’s office, ask about the accessibility of the building and tell them what you need.

Checking accessibility

Signing a will makes it a legal document. You and 2 witnesses must sign this at the same time and in person. You cannot do this over the phone or video call.

A witness can be anyone who is:

• over 18
• not a beneficiary
• not married to a beneficiary

This could be 2 people from your solicitor’s office.

Unable to sign your will?

If your impairment or condition means you cannot sign your will, tell your solicitor as soon as possible.

As an adjustment, someone else can sign the will on your behalf.

The solicitor needs to make it clear that you:

• have read your will
• understand what your will says
• want this to be your will
• give permission for someone else to sign it

For this to be legal, your solicitor needs to add a special form of attestation clause to the will. This is a paragraph that explains what happened when the will was signed and witnessed.

A special attestation clause is only added if the will is signed or witnessed differently.

An executor is responsible for carrying out your will when you die. It’s normally a relative or friend but could be a professional you pay.

When you write your will, you should choose 2 or more executors. If your chosen executor is unable to do it, it’s important to have other people who can.

When you die, one of the executor's first jobs is to work out how much your estate is worth. To do this, they calculate the value of your:

• money
• property
• belongings

Next, they might need to apply for permission to access bank accounts and other assets. This is called applying for probate.

Applying for probate (GOV.UK)

The executor then needs to:

• follow the letter of wishes
• pay any debts
• pay inheritance tax
• give the assets to the beneficiaries

Once all of these have been done, the executor has finished their duties.

If the executor cannot do the role

If the person named as the executor has died or says no, a new executor is appointed. This will be the next person you have listed in your will.

The main beneficiary will need to apply for probate and have a new executor appointed.

Applying for probate (GOV.UK)

Paying off debts

Debts must be paid before the executor can give assets to the beneficiaries. You’d have to sell property and assets to pay off debts.

If the debt is higher than your estate, the beneficiaries will not receive anything.

No one is responsible for the remaining debt.

Dealing with the debts of someone who has died (MoneyHelper)

Trustees

If your will includes a trust, you need to choose trustees. Trustees are people who decide on how to use the money and property in a trust.

The executor can also be a trustee. Unlike the role of executor, being a trustee is a long-term role.

Trusts and inheritance: Trustees

Beneficiaries of your will must get the assets you have left to them. If a beneficiary has died, the assets go to the other beneficiaries.

This should happen once the executor has access to the estate and has paid any debts and inheritance tax.

If an executor is not doing their job, a beneficiary can challenge them. It’s rare, but they can remove an executor if the beneficiaries are not getting their inheritance. If the executor does not want to remove themselves, you need to contact a solicitor to do this.

Beneficiary to a trust

If you have left money in a trust for someone, the trustees will manage this.

The beneficiary of the trust will have to ask the trustees for money or things they need. You can say what the money should be spent on in a letter of wishes.

An individual or organisation can challenge your will after you die. But they might not be successful. The court decides what will happen.

It's known as contesting a will. You have to pay to do this.

If an individual or organisation wants to challenge the will, they would send an application to court and stop a probate application.

Stopping a probate application (GOV.UK)

Reasons for challenging a will can include:

• disagreeing with what it says
• you not having mental capacity when it was written

For example, you might leave more assets to a child because they helped care for you. Your other children might challenge this and ask for your assets to be split equally.

If you’re worried about your will being challenged, you can:

• write a statement explaining why you have made certain decisions
• get proof of mental capacity when the will is written or changed

People can still make a claim, but it’s less likely to be successful if there’s a written statement and proof of mental capacity.

If you do not have a will when you die, the law decides what happens to everything you own. This is called intestacy.

The law is different depending on your circumstances. This includes your marital status and if you have children.

Intestacy - who inherits if someone dies without a will? (GOV.UK)