Wills

A Will is a legal document that sets out how a person wishes their money, property, and possessions (known as their ‘estate’) to be dealt with after their death. Making a will is important because:

1. If the person you care for dies without a Will, they are said to have died ‘intestate’. Their estate will be distributed in a fixed order in accordance with a set of rules dictated by law. This means that the person’s estate may not go to who they intended it to go to.
2. A Will not only sets out who a person wishes their estate to go to but appoints the individual dealing with the administration of the estate (known as the ‘executor(s)’). When a person dies intestate they will have no control over who acts as executor(s) in their estate and instead the court will appoint someone to deal with the estate known as the ‘administrator(s)’. Go to Dealing with the estate for more information about the role of an executor and administrator.
3. Without a will, dividing up the estate can be stressful and time consuming for those having to deal with it. 
4. Having a will can give peace of mind to the person you care for and their family in their final days, knowing that their financial affairs have been left in order and that their loved ones are taken care of. 
5. Making a will may allow the person you care for to distribute their estate in the most tax efficient way.
6. If the person has children, a Will can set out who they wish to look after their children upon their death known as a ‘guardian’. 

​​A person ​​making a Will is known as a ‘testator’. In order to make sure the Will is valid:

1. The testator ​must be over 18 years old
2. The testator must have mental capacity to make a Will. This capacity is a different test to mental capacity under the Mental Capacity Act 2005. See making a will and mental capacity. If there is any doubt over the mental capacity of the testator, it is best to obtain legal advice.
3. The Will must be voluntary and the testator must not have been put under any pressure by another person to make the will.
4. A will must be in writing and be signed by the testator in the presence of two witnesses. A witness must not be someone (or the spouse of someone) who is going to benefit under the Will. The two witnesses must sign the will in the presence of the testator after the testator has signed it

It is possible for a person to make a Will themselves but this is only advisable where the person anticipates the will be straightforward. However, using a solicitor is advisable especially where the will is more complicated. It may be possible to save costs by getting a solicitor to check over the will which has already been drafted to ensure there are no unintended consequences. It is important to get a will right as sorting out any errors or resolving any disputes over the interpretation of the will could potentially incur significant legal costs after a person’s death. For more information on when to seek legal advice, what to include in a will and services which can assist with writing a Will, please visit a local Citizens Advice office.

If the person you care for cannot afford to use a solicitor, some charities offer free will-writing services in order to encourage charitable donations to be made in wills (although this is not mandatory) so it may be worth considering if they want to make a gift to a particular charity and having a look on that charity’s website.

Even if the person already has a Will in place it is important to keep it under regular review, to see if any amendments need to be made, advisably every 5 years or where there is a change of circumstances for example:

• marriage, remarriage or civil partnership
• divorce, dissolution or separation
• birth or adoption of a child

In particular, where a person marries, remarries, or forms a civil partnership, any existing will would be cancelled and a new will should be drawn up.

It is important that a person does not make any updates to a will by amending the original will itself. In order to change a will, a person will either need to make a codicil (this supplements the original will) or an entirely new will. For more information on what is appropriate, see How to change a will.

Once a Will has been made it is important to store it in a safe place for example with your solicitor or bank, safely stored at home, or with the Probate Registry. Make sure the person you care for informs the executor(s) where their will is kept as it will be needed when it comes to administering the estate. Do not attach anything to the will for example by stapling or using paperclips, as this can leave marks on the document and may raise questions about whether a part of the will is missing.

See general information about making a will.

1. Help the person you care for to make a list of their assets for example property, personal possessions, investments and so on. together with their value. Establish if there are any liabilities that should be considered. This information will assist the solicitor if the person you care for is obtaining legal advice.  
2. Talk to the person you care for about how they want to leave their estate. Explain the implications of leaving their estate in a certain way for example unequal division between children which could cause conflict. There may be a valid reason for them leaving their estate in this way for example one child has special needs, however, encourage them to have a conversation with their loved ones before their death or writing a letter with the will setting out their reasons why they have left their estate in this way. This will reduce conflict and potential claims on their estate in the future.
3. Help the person you care for to think about who they want to be their executor(s). Acting as an executor is a responsibility and can take up time. The person you care for should have a conversation with whoever they wish to act as executor(s) before they are appointed in order to ensure they are willing to take on the responsibility.  
4. If the person you care for has children, help them to think about who they want to act as a guardian. Being a guardian is an emotional, financial, and potentially long term commitment. The person you care for should consider carefully who they would think appropriate to take on this role and should discuss it with the individual(s) concerned before they are appointed.