What is a Will?
A Will is a formal and legal declaration stating exactly what will happen to a person’s money, property, and possessions after their death.
There are many reasons why making a Will is so important, but perhaps the biggest is that it is the final say you have in what happens to you and everything you acquired over your lifetime, after you die. It is your right to have this autonomy but note that if you don’t make a will, the law will make these decisions on your behalf.
On a more practical note, making a Will also ensures that no more inheritance tax is placed on your estate than necessary, and generally just makes it easier for your executor to organise everything.
Locating the Will of someone who has died
An issue executors often face in the early stages of probate is finding the Will of the person who has passed if they didn’t disclose its whereabouts. If this is the case, there are a number of things you can do to try and locate it.
- If the deceased died in hospital or a care home, check to see if it was left with them.
- Contact their solicitor, accountant, or bank in case it has been kept with them for safe keeping.
- Look for a certificate of deposit from the Principal Registry of the Family Division, this will indicate that the deceased left their will to be looked after by them. Even if there is no sign of a certificate, it is still worth speaking to the Registry to make sure.
If no physical copy of a Will is found, the distribution of the estate will be carried out as it would if none existed. It is always wise to make sure the named executor in your Will or your next of kin know where it is located to save any confusion or risk of it getting lost.
Who can inherit if there is no Will?
If someone dies without leaving a Will, their estate will be divided in accordance with the rules of intestacy, a set of rules that outline exactly who can inherit in the absence of a Will. A person who dies without leaving a Will is known by the legal term of an ‘intestate’ person.
Only married or civil partners and a select few close relatives can inherit under these rules. If the deceased was divorced or legally separated then their partners is not eligible to inherit, however, if they were informally separated then they can. Cohabiting partners who are neither married or in a civil partnership are also ruled out, but there are various rules of property inheritance for cohabiting partners who jointly owned a property, so this is something to bear in mind.
Close relatives who are eligible to inherit include any children of the person who has died if there is no surviving married or civil partner. If there is a surviving partner, then the children will only inherit if the estate is worth more than £270,000. If there are two or more children, they will inherit in equal shares.
Other family members may inherit but only if there are no partners, children, grandchildren, or great-grandchildren.
Does a named executor have to act?
It is important to know that if you have been named as the executor in someone’s Will, you do not have to act if you would prefer not to. Whilst the executor role is given to you, it is not a role you have to accept, and you have the right to refuse it if you wish to.
For this reason, it is important to take care when choosing your executor. It is a big responsibility that takes a lot of time and work, especially if there are complications along the way. Always discuss the decision with them first and make sure they are comfortable with taking it on before you name them in your Will. This prevents any complications further down the line regarding who will take the role of executor if the named person refuses.
Grants of Probate and Letters of Administration
Regardless of there being a Will, a grant of probate is required for the executor to handle the deceased’s estate. Once the right of probate has been acquired, the executor is then free to begin dividing the estate in accordance with the Will.
If there is no Will, the Will is invalid, there is no named executor, or the executor is unwilling to act, a grant of probate cannot be given and instead letters of administration need to be applied for.
There are rules regarding who can be an administrator and authorities have the legal right to deny someone if they are deemed unsuitable by the law.
It usually takes around 8 weeks to get probate or letters of administration.
