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Making or changing your will

1. Legacies are a ‘Gift’ to Those that Survive

Charitable bequests are a major source of income for charities such as ours. We rely very heavily upon you, the public, to enable us to maintain our current and future levels of support as we receive no income from Central or Local Government sources. Legacies are the life-blood of The Airey Neave Trust.

Were you aware that an amazing £2,000,000,000 is left every year by people that have not made a Will!

Without a Will the law dictates how your estate is distributed. Do not presume that by not making a Will that your spouse will automatically be entitled to your full estate. They may find that not only have they lost a loved one, but that they may also be in danger of losing that which they thought was their rightful inheritance.

By making a Will you will remove this doubt from the minds of your family and friends as your executor(s) will have the responsibility for administering your estate. When drawing up your Will it is always advisable to consult a solicitor to ensure that mistakes are not made that could invalidate your Will.

Two suggested forms of wording should you wish to contribute in this manner to our cause, are:

1.a For a Specified Sum of Money

“I give and bequeath to the Airey Neave Trust (Registered Charity Number 297269-R), PO Box 36800, 40 Bernard Street, London WC1N 1WJ the sum of £ ……………. (in words) free from all duties, wherever payable, to be applied toward the purposes of the said Association; and I direct that the receipt of the Honorary Treasurer, or other proper officer of the said Association; at the time that the payment is made, shall be a full and sufficient discharge for the same.”

1.b For a Residuary Legacy

“All the rest (or a percentage/fraction…..) of the residue of my Estate of whatsoever nature and wherever situated, I give to the Airey Neave Trust (Registered Charity Number 297269-R), PO Box 36800, 40 Bernard Street, London WC1N 1WJ, to be applied toward the purposes of this said association; and I direct that the receipt of the Honorary Treasurer, or other proper officer of the said Association, at the time that the payment is made, shall be a full and sufficient discharge for the same.”

It is never too soon to make a Will, but it is often too late! To die without a proper Will causes complications and much expense.

Have you made your Will yet? Your Remembrance is our Memory.

2. If Your Life Changes, so Should Your Will

Making a will is about Life. A Legacy to charity can improve someone’s quality of life; can give hope to a damaged life, it can even save a life…

Making a Will doesn’t have to be difficult, and it can help reduce the burden on your family when you die. This booklet is a guide to help you through the process of making or changing your Will. Anyone over 18 can write a Will. Provided the Will is valid, it allows your money, property and possessions to be distributed according to your wishes. It also means that your assets can be managed properly, and by the people you appoint to do so.

If you are under 18 and on active service (not necessarily on the front line or on combat duties) it is legal for you to make a Will by oral testament (Privileged Will).

In Scotland, the Law is slightly different. A separate section covering oral testament and Scottish Law will appear later in the Guide.

3. Making or Changing Your Will

Making a Will means that you make the decisions about your belongings. You can vary amounts going to your relatives and set conditions and decide who you want to manage the process for you.

There is a kind of Will known as a ‘Privileged Will’. If you are on operations you can make an oral Will with a single witness, for example, “If I don’t make it, everything goes to my kids”. This ‘Privileged Will’ is as valid as one prepared by a solicitor; but it only applies to certain situations.

If your Will is out of date, or badly worded, it could prove to be very costly and traumatic for your loved ones to sort out at what will already be a difficult time for them. It is important to have your Will properly drawn up and kept up to date. Make life easier for your family and friends; make a Will and let them know the arrangements for your funeral.

4. Do You Need to Make a Will?

Without a Will or with one that is not up to date, you could leave the fate of your loved ones uncertain. Don’t assume your partner, even if you are married, will inherit everything.

If you do not have a Will and you have a young family, there are no instructions about how you would wish your children to be looked after should the worst happen.

You may feel that you do not have anything to leave. Making a Will is about wishes not wealth.  It means that you make the decisions about who gets what, whether it has financial or simply sentimental value. You may feel you have little to leave now, but this may not always be the case. What is important is that what you do have goes to those people who you choose it to do so. The only way to ensure this is to leave a properly draw up Will.

Making a Will means that, when the time comes, your family and friends will not have to deal with the extra anxiety caused by sorting out your personal effects and finances, in addition to coping with the sadness of your death.

5. When to Consider Changing Your Will

If your family structure changes in any way, it is important that you update your Will. Other times to consider making or updating your Will are:

  • When purchasing property
  • When marrying
  • The birth of children/grandchildren/great-granchildren…
  • In the event of divorce
  • Subsequent remarriage
  • New partner
  • Death in the family
  • Illness
  • Retirement
  • Increased or sudden wealth

6. What happens if there is no Will?

If there is no Will when you die, your estate is subject to the ‘rules intestacy’. This means it is divided up according to strict rules, and it is possible that some people you would wish to benefit from you Will may not do so.

In such cases there is a set order of relatives who are expected to act as the ‘administrator’ of your affairs, plus ‘rules of entitlement’ which determine who gets what, depending on which family members survive you.

This situation can get complicated; for instance, if you lived with a partner but were not married, under the rules of intestacy they would not be entitled to anything (though they may be able to claim something under the Inheritance Act 1975). This could mean that if you bought a house with a partner, they could have problems staying in the property.

7. A Valid Will

You can make a Will in a number of ways.

  • There are packages available from stationers and you can write one yourself.
  • You can talk to your solicitor, financial advisor or accountant.

If you do not have a solicitor and don’t know where to start, you can contact the Wills & Legacies Officer at the Army Benevolent Fund, who will happily help you find Law Society registered solicitors in your area. However, we are not able to recommend particular solicitors. If you wish, you can visit our website where you will find a link from our Legacies page to the Law Society List of Registered Solicitors.

A legacy is the wish or bequest within your Will; it specifies what you would like to leave to whom. You can leave legacies to relatives, friends, charities, or whomsoever you wish.

8. Different Types of Legacies

  • Pecuniary
  • Residual
  • Specific
  • Discretionary
  • Charitable trusts

8.a Pecuniary Legacy

  • A cash sum of any size.
  • Loses value from the day it is made, but it can be index-linked.
  • Takes priority of the ‘residue’ when the estate is administered (see below).

8.b Residual Legacy

  • What is left, after all debts, pecuniary legacies, tax and fees have been paid, is the ‘residue’. This can be left to one person, or it can be shared out among any number of individuals, a charity, or any number of charities.
  • It usually increases in value over a time because residuals are usually property and or investments.

8.c Specific Legacy

A defined article of any kind. If the defined article cannot be found, the legacy will fail.

8.d Discretionary Legacy

Where the decision as to who precisely benefits is left to the Executors (i.e. “for medical research” or “those serving in the forces”). However, this type of legacy will involve your executors in extra work and time, which might be a burden.

8.e Charitable Trusts

Those with large estates sometimes establish trusts, and if not instructed for use, the Executors decide who benefits.

9. When Not to Do-It-Yourself

There is no legal requirement to use a solicitor to make a Will. But there are circumstances when getting legal advice should be recommended, for example:

  • If your Estate is very complex, e.g., shares, property, different accounts, and when you want to leave several bequests.
  • If you live with a partner you are not married to.
  • If you have remarried or live with a new partner and have children from a previous marriage; possibly children from both relationships.
  • If you have assets such as property or investments outside the UK.
  • If there is a business or businesses involved.
  • If the value of your estate exceeds the inheritance tax threshold. In this case, you should take advice on minimising the amount of inheritance tax that has to be paid.
  • If you will be providing for someone with disabilities.

10. Add up your Assets

The best place to start is to calculate your assets.

  • If you own a property, its value is the market price that day, less any mortgage owned.
  • If you share ownership with a spouse or partner, your worth is half its market value less your share of the mortgage.
  • You should detail any life insurance policies.
  • Cash in bank accounts.
  • All investments.
  • Valuables such as antiques or jewellery.
  • General possessions such as furniture and household equipment.
  • You will need to make some deductions to cover funeral expenses and mortgages and/or loans.

And the end, you should reach a total figure of your ‘worth’.

11. Things to Consider

11.a Where Children are Beneficiaries

If your children are under 18 you should,

  • Say who you wish to be their guardians, if both parents die
  • Where money will come from to look after them.

This is usually made in the form of trusts. If children inherit money and/or property, it is held in trust until they are 18 (or until they marry if earlier). If you don’t specify how the trust should be managed, it will be dealt with according to the ‘trustee laws’, which let the executors deal with the fund. If you have children with special needs then you must take professional advice to ensure that their future is safeguarded and to ensure that their statutory funding is maintained after your death.

11.b Executors & Witnesses

The person or people you choose as executors will have to:

  • Obtain probate (certificate for Executor to administer the estate)
  • Distribute bequests and legacies
  • Sell property where necessary
  • Pay debts and expenses
  • Wind-up the estate.

It is common to pick one or more of the people closest to you to be an Executor, such as a spouse, your children over 18, or a friend or other relative. At least two executors are recommended, but check with each person first. You could appoint a solicitor or an accountant as Executor. It is worth considering asking someone who is younger than you.

The Will must be signed by you in the presence of two witnesses, and signed by them at the same time. Neither a witness, nor the married partner of a witness, should be a beneficiary of the Will.

An Executor can be a beneficiary of the Will, but not your witnesses or partners of the witnesses. It is common practice to ask staff in solicitors’ offices to be witnesses.

11.c Inheritance Tax

If you have a large estate, we strongly advise that you take appropriate financial advice from a specialist financial advisor. It is not so unusual these days for an estate to be worth in the region of the inheritance tax threshold (2007 - £285,000, tax rate – 40%).

If your total estate adds up to more than the inheritance tax threshold, you will need to consider your inheritance tax liability. For example, if someone’s estate is worth £320,000, up on his or her death the tax payable will be £14,000. There are several ways to minimise this by taking advantage of the exemptions that allow you to make tax-free gifts during your lifetime. These include,

  • An annual gift exemption of up to £3,000 to beneficiaries of your will (may become liable for Inheritance Tax if you die within seven years of the gift)
  • Gifts to spouses or civil partners
  • Gifts to children on consideration of marriage or civil partnership
  • Gifts to charities

Keep in mind that it may not be as simple as leaving everything to your spouse or children, because this can simply pass the burden of inheritance tax on to them. You might wish to seek legal advice if you are concerned about inheritance tax.

11.d Putting it on Paper

A valid Will must be in writing – typed or handwritten – and written voluntarily and without undue pressure from anyone (there are rare circumstances where a Will can be oral- see page 2).

Produce a draft copy first so you avoid making corrections to the final version. If you need to, make sure you make the corrections in front of witnesses, and both you and they must initial the correction. Remember to date the Will and destroy all draft copies.

11.e Storing Your Will

You can keep a Will at home, or ask a solicitor or bank to keep it for your (some will charge for this). You can also file it at a District Probate Registry or Probate Sub-Registry (look in the phone book for the nearest). Again, you will be subject to a charge; however, this is usually negligible. Wherever you keep your Will, make sure your family and/or the executors know where it is.

12. Making Changes to Your Will – Codicils

Keep it up to date

It is important to review your Will every few years and consider amending it or even writing a new one if there is a change in circumstances, such as if you get married, have children or get divorced.

Changes to a Will can be made by ‘codicil’- an addendum to the original Will- or by revoking the old Will and drawing up a new one. You can revoke a Will by physically destroying it. If the change is relatively simple, you can write a codicil and get it witnessed, and keep it with your existing Will. But you should not alter the original Will.

If you wish to make a new Will, it should begin with a clause stating that it revokes all previous Wills and codicils. If the changes are complicated- for example, because of remarriage- it may be best to get legal advice on drawing up the new Will. Make sure you let the relevant people know that you have done this so that there are no confusions. Also please remember that residual legacies have to amount to 100%- lots of codicils can be confusing and if residual legacies do not amount to 100% then the Will could be contested.

13. Finding a Solicitor

If you prefer to use a solicitor, choose one that specialises in writing Wills. Ask around for recommendations or contact your local Citizen’s Advice Bureau, or the Law Society. The Legacies Officer at the Army Benevolent Fund can help you find a Law Society Registered solicitor; however, the Army Benevolent Fund cannot recommend the services of any particular solicitor.

Some solicitors offer a first interview for a fixed fee or free, and many charge a set fee for Will writing. Ask several for a quote first, and explain if there are complicated circumstances or if inheritance tax is involved- the fees will probably be higher. You should be able to get help with legal costs if you are financially eligible and 70 or over, a single parent, are disabled or are the parent of someone with a disability being provided for in the Will.

There are a number of Will writing services on the internet. Some offer simply to write your Will for you based on your personal details, but won’t offer legal advice. Some solicitors offer online Will writing with (some) legal advice. Make sure it is clear up front whether you are getting legal advice for your money or not.

13.a Before you see the Solicitor

  • Work out what you are ‘worth’; this will save time and money.
  • Make a list of all the names and addresses of the people and organisations you want to benefit from your Will.
  • Ask the individuals you would like to be Executors of your Will if they are happy to be so. Make sure you have their correct addresses, too.

14. Next Steps

  • You can pick up to four Executors to handle your estate. Make sure they agree to do this.
  • Think carefully about setting up trust funds for children.
  • A valid Will needs to be signed in the presence of and by two witnesses who don’t stand to benefit from the Will.
  • You can change a Will at any time by adding a codicil or by writing a new Will.
  • If inheritance tax is involved, get legal advice on keeping it to a minimum.
  • If you use a solicitor, get several quotes.

15. Scottish Law and Will Making

In Scotland, the spouse and children are entitled to a fixed share of the estate known as “legal rights”. If there is a Will, prior rights do not apply, but the surviving spouse is entitled to one-half of the movable estate if there are no children and one-third if there are children. The children are entitled to one-half of the movable estate if there is no surviving spouse and one-third if there is. The rest of the estate will be dealt with in whatever manner is specified in the Will, but beneficiaries cannot claim their legal rights and pursue benefit from the terms of the Will at the same time; they have to choose one or the other.

In Scotland if you marry, a prior Will remains effective; however, if a child is subsequently born and no provision has been made, the Will is presumed to be revoked completely if the child concerned brings a claim.

There are no automatic provisions enabling income and capital to be used to help pay for a minor child’s maintenance and education in Scotland, so it is vital for Scottish parents to make Wills giving sufficient powers to their Executors where assets may have to be held on behalf of their children.

16. Glossary

Administrator
The person who deals with the estate where there is no Will
Bequest
A legacy, i.e. gift of a particular object or cash
Beneficiary
A person or organisation who receives a legacy from your estate
Codicil
A legal document which amends or adds to a Will
Estate
The total of your assets- property, investments, cash possessions (but less any debts) when you die
Executors
The people (min. of two) you name in your Will to administer your estate
Intestacy/Intestate
Dying without a valid Will. The laws of intestacy dictate who deals with your estate and how it is distributed
Legacy or Bequest
A gift you leave in your Will, usually money
Pecuniary Legacy
A gift of a sum of money
Privileged Will
Oral Will with a single witness. Only applies in certain circumstances
Probate
The legal document obtained by the Executor/s after death that gives them authority to handle the estate
Residuary of
The balance of what remains of your estate (or part of) after all Residual Legacy debts, taxes and other legacies are paid
Reversionary Legacy
A gift in your Will that reverts to another beneficiary (such as a charity) should the original beneficiary have died
Specific Legacy
A gift of a particular item in your Will
Trust
A legal arrangement to hold money or property for someone else, usually a child.