Frequently Asked Questions

Here is a list of our most regular FAQ's:

What is a Will?

A legally binding document containing instructions telling your executors what to do with your property (assets) when you die.

Who needs a Will?

Anyone over the age of 18 (in England and Wales) and of sound mind, who has children or assets.

What happens if I die without a Will?

1. If the value of your estate is more than £5,000, someone in your family has to apply to the Probate Courts to sort out your estate, deal with any debts you had when you died, pay any inheritance tax that may be due and distribute your assets in accordance with the Rules of Intestacy, shown below. The process can take months, sometimes years to complete, can give rise to family disputes and benefit people who you would not wish to see inherit.

2. Many people mistakenly think that their estate will automatically go to their spouse / civil partner when they die. This is not necessarily the case. It depends on the deceased person’s circumstances as shown below:

If the deceased was married or in a civil partnership with an estate worth £250,000 (£125,000 prior to 9th February 2009) or less:

Everything goes to the husband, wife or civil partner.

If the deceased was married or in a civil partnership with an estate worth over £250,000 (£125,000 prior to 9th February 2009):

The husband, wife or civil partner won't automatically get everything although they will receive:

• personal items, such as household articles and cars, but nothing used for business purposes.

• £250,000 (£125,000 prior to 9th February 2009) free of tax, £450,000 (£200,000 prior to 9th February 2009) if there are no children.

• a life interest in half of the rest of the estate (on his or her death this will pass to the children or as immediately below).

The rest of the estate will be shared by the following:

• Children (or if none, grandchildren) will get an equal share.

• If there are no children or grandchildren, surviving parents will get a share.

• If there are no children, grandchildren or surviving parents, any brothers and sisters (who shared the same two parents as the deceased) will get a share (or their children if they died while the deceased was still alive).

• If the deceased has none of the above, the husband, wife or registered civil partner will get everything.

If there is no surviving spouse/civil partner the estate is distributed as follows:

• To surviving children in equal shares (or to their children if they died while the deceased was still alive).

• If there are no children, to parents (equally, if both alive).

• If there are no surviving parents, to brothers and sisters (who shared the same two parents as the deceased), or to their children if they died while the deceased was still alive.

• If there are no brothers or sisters then to half brothers or sisters (or to their children if they died while the deceased was still alive).

• If none of the above then to grandparents (equally if more than one).

• If there are no grandparents to aunts and uncles (or their children if they died while the deceased was still alive).

• If none of the above, then to half uncles or aunts (or their children if they died while the deceased was still alive).

• To the Crown if there are none of the above.

Visit www.hmrc.gov.uk/cto/customerguide/page14-1.htm

I’ve lived with my partner for more than 2 years so I’ll get everything anyway won’t I?

A co-habiting partner has no automatic right to any of their deceased partner’s estate. If they haven't provided for you in some other way, your only option is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.


Who will look after our children if they’re orphaned and we don’t have a Will?

Social services will decide with whom the children should live.

My spouse and I have left everything to each other when the first person dies and then to our children. That’s OK isn’t it?

Not necessarily:

• What happens if one remarries when the other dies and they don’t make a new Will? Your children could be left with nothing.
• If the surviving partner needs long term care the family home may have to be sold to fund it.
• If you have remarried and have children from your first marriage, the survivor could change the Will and disinherit them.
• If you have a large estate your beneficiaries may pay more tax than they need to because you have not included an IHT trust in your Wills.

I’m getting married soon but I’ve already made a Will. Do I need to change it?

A marriage revokes a Will UNLESS it was made in contemplation of that marriage.

I am divorced – what will happen to my existing Will?

Getting divorced does not cancel a Will, but a gift to a divorced spouse /civil partner lapses if a contrary intention does not appear in the Will.

What is included in my estate?

Your estate is everything you own at the time of your death after all your outstanding debts have been settled, including probate costs, inheritance tax (if applicable) and funeral expenses.

What then, is excluded from my estate?

Your estate does not include money in a joint bank or building society account, property or shares owned jointly or life policies in joint names or policies where you have already nominated who should be the beneficiary on your death. From your employment, your death in service benefits and pension are also not normally included.

Can I make provision for my children?

Yes, however by legal definition they would be your natural children, including illegitimate children, plus any you may have legally adopted. Stepchildren are not included in this definition so if you wish them to be provided for, they will need to be mentioned by name.

Can’t I just give my house /assets to my children now to avoid inheritance tax or paying for long term care?

If you continue to live in the house or continue to use any other asset then:

• A local authority can ignore the transaction, without limit of time, if they consider that it was done to avoid paying for long term care fees
• The value of the asset will be added back into your estate for the calculation of Inheritance Tax
• Unless your children live with you, the house will be subject to Capital Gains Tax on its increased value from the date of the original transfer
• If your children become involved in a marital dispute or become bankrupt, your home may be considered to be a part of their assets and may need to be sold to fund a divorce or pay creditors
• Income Tax will be payable on the market rental value of your home / asset, even if you are not actually paying rent

Can I change my Will?

Yes, but only by writing a new Will or, where the alterations are straightforward, by signing a document called a codicil. A codicil (like a Will) must also be prepared, signed and witnessed in a particular way. However, you do not need to rewrite your Will or have a codicil if you or any person named in your Will changes their address.

Am I able to cancel my Will?

You can cancel your Will by either destroying it or making a new Will.

I own a house abroad. Do I need a Will there?

Usually yes. UK Wills only dispose of movable property overseas. You should ensure that both the UK Will and the foreign Will refer to each other rather than revoking each other.

Is it possible that my Will can be changed after my death?

Normally, no. However a Deed of Variation may be exercised within two years of death to alter the terms of the Will with the agreement of all the residuary beneficiaries for the purpose of, for example, mitigating inheritance tax.

What happens if I leave someone out of my Will?

If you have not properly provided for any of your dependants who are unable to maintain themselves, or if you have not been fair to your wife, husband or civil partner (or possibly an 'ex' who has not remarried), the Court, on application, can alter your Will. Your reasons for not including someone in your Will should be given, ideally in a separate letter, but the Court is not bound by the content.

Can I leave a hand written list of gifts / personal belongings with my Will?

You can do this if you have said so in your Will. You can state in your Will that your executor is to distribute your personal belongings according to a separate list that you keep with your Will, although not attached to it. Changes to the list can then be made without the need to alter your Will.

What should I do with my will after I have signed it?

If there is one place you should never ever keep your Will, it is at home. If your Will could not be found, or it went up in smoke in a house fire or it was damaged or tampered with, then you have no Will because copies are not legally valid as they do not carry your original signature. InHeriTance Matters recommends the National Will Safe Document Storage facility that overcomes all of the problems of safely caring for your Will and associated documents for a small annual fee.