How to Make a Will as Part of Estate Planning

Making a will is one of the most important steps in estate planning. It ensures that your assets are distributed according to your wishes after your death and helps avoid disputes, delays, and unintended legal consequences. In England and Wales, wills are governed by specific legal rules, and failure to follow them can result in a will being declared invalid.

This guide explains how to make a will step by step, the legal requirements involved, and the practical considerations to ensure your estate is properly managed.

Why Making a Will Matters

A will is a legally binding document that sets out how your estate should be distributed after your death. Without a valid will, your estate is distributed under the rules of intestacy, which may not reflect your personal wishes and can exclude certain individuals, such as unmarried partners.

Making a will also allows you to appoint trusted individuals to manage your estate, provide for dependants, and reduce the risk of legal disputes.

The Legal Framework for Wills

Wills in England and Wales are primarily governed by the Wills Act 1837. This legislation sets out the formal requirements for a valid will.

To be legally valid, a will must:

• Be made by a person aged 18 or over
• Be made voluntarily, without undue influence
• Be made by someone with testamentary capacity
• Be in writing
• Be signed by the person making the will
• Be witnessed by two independent witnesses present at the same time

Failure to meet these requirements can render a will invalid, meaning the estate may be distributed under intestacy rules.

Step-by-Step Guide to Making a Will

Step 1: Identify Your Assets and Liabilities

Begin by listing everything that forms part of your estate:

• Property and land
• Bank accounts and savings
• Investments and shares
• Pensions and insurance policies
• Personal belongings
• Debts and liabilities

Understanding the size and structure of your estate helps ensure accurate distribution and assists with inheritance tax planning.

Step 2: Decide Who Will Benefit

You must decide who will inherit your estate (your beneficiaries).

This may include:

• A spouse or civil partner
• Children or stepchildren
• Other family members
• Friends or charities

It is also important to consider substitute beneficiaries in case someone predeceases you.

Clear instructions reduce ambiguity and the risk of disputes.

Step 3: Appoint Executors

Executors are responsible for administering your estate after your death.

Their duties include:

• Applying for probate
• Collecting and valuing assets
• Paying debts and taxes
• Distributing the estate

You may appoint one or more executors. They should be trustworthy, organised, and capable of handling legal and financial responsibilities.

Step 4: Consider Guardians for Children

If you have children under 18, your will should appoint guardians to care for them if both parents die.

Without a will, the courts may decide who takes responsibility, which may not reflect your preferences.

Step 5: Decide How Assets Will Be Distributed

You can structure your will in different ways:

• Specific gifts (e.g. leaving a property or sum of money)
• General gifts (e.g. percentages of your estate)
• Residuary estate (what remains after debts and specific gifts)

You may also include conditions or create trusts to manage how assets are distributed.

Step 6: Consider Trusts and Tax Planning

Trusts can be used within a will to:

• Protect assets for children or vulnerable beneficiaries
• Control when beneficiaries receive inheritance
• Potentially reduce inheritance tax liability

Inheritance Tax (IHT) is charged at up to 40% on estates above certain thresholds, making planning an important consideration for many individuals.

Step 7: Ensure Testamentary Capacity

You must have testamentary capacity when making your will. This means understanding:

• The nature of making a will
• The extent of your estate
• The claims of potential beneficiaries

The legal test for capacity is based on Banks v Goodfellow.

If capacity is in doubt, obtaining medical evidence at the time of making the will can reduce the risk of future challenges.

Step 8: Execute the Will Properly

The signing and witnessing process is critical.

To execute a will correctly:

• Sign the will in the presence of two witnesses
• Ensure both witnesses are present at the same time
• Witnesses must also sign the will

Witnesses should not be beneficiaries or married to beneficiaries, as this may invalidate gifts to them.

Step 9: Store the Will Safely

Once completed:

• Store the will in a secure location
• Inform executors of its location
• Consider professional storage services

Losing the original will can create significant complications during probate.

Step 10: Review and Update the Will

A will should be reviewed regularly, especially after:

• Marriage or divorce
• Birth of children
• Significant changes in assets
• Changes in tax law

Marriage generally revokes an existing will unless it was made in contemplation of that marriage.

Probate and Administration of the Estate

After death, the will is used during the probate process.

Probate involves:

• Confirming the validity of the will
• Granting authority to executors
• Administering the estate

A clear and properly drafted will can simplify probate and reduce delays.

Legal Risks and Common Mistakes

Invalid Execution

Failure to follow formal signing requirements can invalidate the entire will.

Ambiguous Wording

Unclear language may lead to disputes and court interpretation.

Failure to Provide for Dependants

This may result in claims under the Inheritance (Provision for Family and Dependants) Act 1975.

Outdated Wills

Changes in circumstances can make an existing will unsuitable or ineffective.

Undue Influence

Pressure or coercion can invalidate a will if proven.

Time Limits and Legal Claims

Certain claims can be made against an estate:

• Under the Inheritance (Provision for Family and Dependants) Act 1975, claims must usually be brought within 6 months of the grant of probate

Challenges to the validity of a will, including lack of capacity or improper execution, may be brought without a strict statutory time limit, although delay can affect the outcome.

Common Questions About Making a Will

Can I make a will without a solicitor?

Yes, but professional advice is recommended, particularly for complex estates or where tax planning is involved.

What happens if I die without a will?

Your estate is distributed under intestacy rules, which may not reflect your wishes.

Can a will be changed?

Yes, through a codicil or by creating a new will.

How much does it cost to make a will?

Costs vary depending on complexity and whether professional services are used.

Practical Guidance for Getting Started

• Begin with a clear list of assets and beneficiaries
• Use precise and unambiguous language
• Ensure proper witnessing and execution
• Keep records and communicate your intentions
• Review your will regularly

These steps help ensure your will is legally valid and effective.

Making a Will as a Core Part of Estate Planning

Making a will is a central element of estate planning in England and Wales. It provides legal certainty, protects your family, and ensures your assets are distributed according to your wishes.

By following the legal requirements set out in the Wills Act 1837, considering issues such as testamentary capacity and inheritance tax, and regularly reviewing your arrangements, you can reduce the risk of disputes, delays, and financial loss.

Taking the time to make a clear and valid will is one of the most effective ways to safeguard your estate and provide long-term security for your beneficiaries.