Last Will and Testament

What is a last will and testament?

A last will and testament (also known as a 'will') is a document that is used to set out a person's instructions about how they would like their assets and property to be distributed after they die. The person making a will is known as a testator. This last will and testament may be used by a testator who is living in England and Wales.

What is the difference between a will and a power of attorney?

A will is used to set out how a person's finances and property will be distributed when they die.

A power of attorney will be used and referred to whilst a person is still living. A power of attorney grants authority to another person to act on behalf of the creator of the power of attorney during their lifetime.

Is it mandatory to have a will?

No, it is not mandatory to have a will. Without a will, a person's assets will be distributed following the rules of intestacy. The rules of intestacy are a set of rules that will govern how a person's assets will be shared.

What is an estate?

All assets and property owned by the testator at the time of their death are referred to collectively as their estate.

What does beneficiary mean?

A beneficiary is a term for a party who will receive benefits or assets from the estate of the testator under the will after the testator dies. A beneficiary can be a family member, a friend or a charity.

What does executor mean?

An executor is the party that will be responsible for managing the estate of the testator after they die, by following the instructions in the will. It is possible to appoint more than one executor. An executor can be a:

• family member of the testator
• personal acquaintance of the testator
• professional executor - such as a solicitor or an accountant

An executor may not act if:

• they are under 18 (at the time of the testator's death)
• they are in prison
• they lack capacity
• they are bankrupt

Who can create a will?

This will can be created by any person who is at least 18 years of age and a resident of England and Wales. The testator must have the legal and mental capacity* to make the will at the time of writing it.

In order to have the capacity to make a will, a testator must understand the nature and purpose of the will and the extent of the property that is being disposed of under the will. The testator must also be able to understand any legal claims which may arise under the will. The testator must not have any mental condition that prevents them from making the will.

When does a will take effect?

A will takes effect when the testator dies. The executors have to apply for probate at this point. A grant of probate letter will be granted which will then give the executor or executors permission to manage the estate of the testator in accordance with the instruction of the will.

What has to be done once a will has been finalised?

A fully completed will should be signed by the testator in the presence of two witnesses. The witnesses must also sign the will in order to confirm the validity of the testator's signature.

The testator and the witnesses should also put their initials on the bottom right-hand corner of each page of the last will and testament.

The will must be kept in a safe place. All executors should be made aware of the existence of the last will and testament.

Is it necessary to notarise a will?

While it is not mandatory to notarise a will, the testator can choose to do this. This is a further step that can be taken to prove the validity of the document.

Is it necessary to register a will?

It is not mandatory to register a will. However, it is possible to register a will using the National Will Register. It is also possible to store a will via HM Courts and Tribunal Service.

This can help to ensure that the will can be located when the testator dies.

Is it necessary to have witnesses for a will?

Yes. In order to be valid, a will must be signed by the testator in the presence of two witnesses. Each witness must sign the will to authorise (attest) the signature of the testator.

A witness should:

• be over the age of 18
• have capacity (they must have the ability to understand and make decisions)
• not have a personal interest in the will
• not be blind or partially sighted

What must a will contain?

A will must contain the following:

• a declaration stating that the document is a will
• the details of the testator (i.e. their full name and address)
• the appointment of a person who will manage the estate (i.e. executors)
• names of the beneficiaries and what they will receive
• a detailed explanation of how the assets will be distributed
• the signature of the testator
• the signature of the witnesses

What laws apply to a will?

The following key legal provisions will be relevant to the construction and interpretation of a will:

• The Wills Act 1963
• The Standard Provisions and all of the Special Provisions of the Society of Trust and Estate Practitioners (2nd Edition) (STEP)
• The Children Act 1989
• The Trustee Act 1925
• The Inheritance and Trustees' Powers Act 2014
• The Inheritance Tax Act 1984
• The Administration of Estates Act 1925

Help from a lawyer

You can choose to consult a lawyer if you need help.

The lawyer can answer your questions or help you through the process. You will be offered this option when you complete the document.

How to modify the template?

You fill out a form. The document is created before your eyes as you respond to the questions.

At the end, you receive it in Word and PDF formats. You can modify it and reuse it.