Writing a Will is one of the most important things you can do to protect your family and loved ones after you die. But what makes a Will legal?
First, we will start with the short answer before heading into more details.
To be classed as a legally binding document a Will must be signed and dated, in writing, and witnessed in your presence by two adults who are not beneficiaries. You must be able to understand what a Will is, what your assets are and who the beneficiaries are.
What is a Will?
A Will is a legal document that sets out your wishes for what should happen to your money, property and possessions after you die.
It is important to have a Will in place so that your loved ones know your wishes and can easily access and follow your instructions.
If you die without a legal Will, your estate will be distributed according to the laws of intestacy, which may not be what you would have wanted.
The laws of intestacy simply mean the government will decide how to split up your estate amongst your next of kin.
So, what exactly makes a Will legal in the UK?
What makes Wills legal?
Certain legal requirements must be met for a Will to be valid in the UK.
Firstly, you must be over the age of 18 years old. If you are under this age, you are not legally allowed to make a Will.
You also need to be what is described as ‘of sound mind’.
In its simplest terms this means that you understand what a Will is, you know what property and possessions you have, and you are aware of who your relatives are.
You must not be suffering from any form of mental illness that would affect your ability to make a clear and concise Will.
This means that you can understand the nature of your assets and how they will be distributed after your death.
For a Will to be legal in the UK it also must be in writing. This can be either in paper or electronic form, as long as it can be accessed and read by others.
It must be signed by you in the presence of two independent witnesses who are also over the age of 18 years old.
The witnesses must also sign the Will in your presence. The Will must also be dated by both yourself and the two witnesses.
A quick Will-writing checklist:
- The testator (the person making the Will) must be aged 18 or over
- For a Will to be valid it must be in writing and signed by the testator
- The Will must be signed and witnessed by two independent adults
- It must be made freely and without coercion
- The testator needs to be of ‘sound mind’
If any of these requirements are not met, the Will may be declared invalid by a court. We’ve also added a helpful checklist further below to use prior to making a Will.
What is the Informal Probate Process?
If you do not meet these criteria, your Will may still be valid under what is known as the ‘informal probate process.
This is a simpler process than going through the formal probate courts and can be used if:
- The total value of your estate is less than £5,000
- You are married or in a civil partnership and your spouse or civil partner agrees to inherit your entire estate
- All the beneficiaries listed in your Will agree to the distribution of your estate as set out in the Will.
- You have no children under the age of 18
If you want to make a Will but don’t meet the criteria for informal probate, you’ll need to go through the formal probate process.
This is more complex and can be costly, so it’s best to seek professional advice from a solicitor before proceeding.
What are some common mistakes made when creating a Will?
One of the most common mistakes made when creating a Will is not having it witnessed by two independent witnesses.
This is a crucial step in making sure your Will is legal and valid. Without the witnesses, your Will may not be considered valid in a court of law.
Another common mistake is not having the Will correctly signed. The testator must sign the Will in the presence of the witnesses, and the witnesses must sign the Will in the presence of the testator.
This helps to ensure that everyone involved understands and agrees to the contents of the Will.
It is also worth noting that, although not required by law, it is generally advisable to seek professional advice when drafting a will, to ensure that it is correctly written and executed. We can help, so feel free to contact us for advice here.
What are the consequences of not having a legal Will?
If you die without a valid Will in place, your estate will be distributed according to the laws of intestacy.
This means that your assets may not go to the people you intended and could even end up going to the government.
When this happens, it’s called dying intestate.
Creating a valid Will is not as complicated or expensive as you might think. You can either write one yourself or have a solicitor draw one up for you.
If you choose to write your own Will, make sure you follow the legal requirements set out above. And, if you’re ever in doubt, seek legal advice.
While there are several ways to make your Will legally binding, some methods are more effective than others.
For example, having your Will witnessed by a solicitor is generally considered to be the most reliable way to ensure its validity.
Is a Will legal if I do it myself?
It is possible to make a Will without using a solicitor, but it is advisable to seek professional help to ensure that your Will is correctly drawn up and witnessed.
If you want to create a Will without using a solicitor, you can find do-it-yourself will kits online or at stationery stores.
These can be a cost-effective way to create a basic Will, but it is important to make sure that the kit you use is up-to-date and covers all of the relevant points.
It is also a good idea to have somebody else read over your Will before you sign it, to make sure that everything is in order.
A checklist prior to making a will
Before you make your Will, it is important to consider what you want to include in it. Here is a checklist of some of the key things to think about:
- Who to appoint as executor/s (the person/s who will carry out your wishes)
- Who will benefit from your estate?
- What assets do you have and what you want to include in your Will
- Any debts you want to be paid from your estate
- Do you have any special instructions, such as funeral arrangements?
- The names of any guardians you wish to appoint as guardians for any young children
You can either draw up the Will yourself or use a solicitor. If you’re unsure about anything, it is best to seek professional legal advice.
If you choose to do it yourself, then you will need to make sure you follow the steps we’ve outlined in this article to make it legal.
Does a Will have to be registered to be legal?
Although a Will does not have to be legally registered in the UK, it is a good idea to keep your Will in a safe place, such as a bank vault or solicitor’s office.
You should also let your executor (the person you have appointed to carry out your wishes) know where the will is kept.
Another benefit of registering a Will is that, in the event of your death, it can be quickly and easily located by your executor.
To find out more about registering Wills, head over to discover more in our other helpful article. Does A Will Have To Be Registered? Is It Legal? The Benefits.
If you would like to learn more about making a Will, or if you need help ensuring that your Will is legal and valid and you are in Cardiff or the South Wales area, contact one of our experienced Wills, Probate and Trust solicitors who can help support you and navigate through the legalities of making a Will in the UK.