Who are my executors and what do they do?
The first thing you need to do is appoint your executors (or executrixes). Your executors are the people who will carry out your wishes after your death. You can have up to four executors and they can also be beneficiaries of your Last will and testament.
Their roles include:
making your funeral arrangements in accordance with your instructions
working out what your estate is worth
deciding whether or not there is any inheritance tax to pay on your estate
contacting HM Revenue & Customs to pay any tax which is owing
applying to the Probate Registry for the grant of representation of your will
What is probate?
In England and Wales
The Probate Service is the part of the Family Division of the High Court in England and Wales that deals with wills.
A grant of probate is a document from the Family Division of the High Court which confirms that your will is valid and that your estate can be distributed in accordance with the terms of your Last will and testament.
Once your executors have received the grant of probate they can:
collect in your assets
pay off your liabilities
distribute the legacies to your beneficiaries (which may include themselves)
For more information, read Probate. You can also use Rocket Lawyer's Probate service from £600+VAT.
The Commissary Department of the Sheriff Court deals with wills in Scotland. Where a person has died, the executor(s) must apply to the Commissary Department of the Sheriff Court in the area in which the deceased lived at the time of death to obtain a grant of confirmation.
A grant of confirmation is the Scottish equivalent to a grant of probate. The grant of confirmation is a document that enables the executor(s) to hold and administer any money or other property belonging to the deceased according to the law or their Last will and testament.
Once the executors have received the grant of confirmation they can:
pay liabilities and debts
distribute the legacies to any beneficiaries (which may include themselves)
For more information, read Confirmation in Scotland.
Testamentary guardians for children
Once you have decided who you would like to be your executors, you then need to consider whether or not you need to appoint any testamentary guardians in your will.
Testamentary guardians are people who will look after your children if any of them are under 18 at the time of your death. Testamentary guardians take over the role of parental responsibility for children. For further information, read Appointing a guardian.
A legacy is a gift left under a will.
You need to decide whether you want to leave any cash legacies to any individuals or charities and if so how much.
You need to decide whether there are any personal belongings of yours that you wish to leave to anybody, eg your watch or your jewellery.
You need to be careful about how you word any specific legacies of this nature so that property can be easily identified.
The rest of your estate
The last thing you need to decide is who will receive everything else in your estate (called the 'residue') after all the legacies, bills and taxes have been paid. The person or persons receiving the residue of your estate are called the 'residual beneficiaries'.
If there is more than one residual beneficiary, you will need to decide if they receive the residue in equal or unequal shares. Also, if any of your chosen residual beneficiaries dies before you, do you want their legacy to pass to any of their children?
Legal rights of spouses and children
This applies to Scotland only.
A spouse or child of the deceased can claim legal rights over the estate. Where such a right is invoked, all other entitlements under the will are forfeited. Claims under these rights can be made for up to twenty years after death.
What is a mirror will?
A mirror will is when spouses make almost identical wills, for example, by leaving everything to each other should one spouse die, or if spouses both die together, then directly to their children. For more information read Mirror wills and Mirror wills in Scotland.
A joint will is also possible, however, it can't be changed unless both parties to the will agree.
Inheritance tax is a tax on your estate. There’s normally no inheritance tax to pay if:
the value of your estate is below the £325,000 threshold (the tax-free allowance or 'nil rate band')
you leave everything to your spouse or civil partner, charity or a community amateur sports club
From 2017, the tax-free allowance is increased by an additional residence nil rate band (RNRB) if you leave your residence to your children (including adopted, foster or stepchildren) or grandchildren. This RNRB is £175,000 for the tax year 2021/22.
Spouses or civil partners can also pass on their unused tax-free allowance to their spouse tax-free. For example, if a husband dies and his estate is under £325,000, his wife can take his allowance and add it to her own tax-free allowance. This combined allowance means that when she dies, her estate will only incur inheritance tax if it is worth more than £650,000.
Inheritance tax is normally paid from the funds in the estate, or from money raised from the sale of assets if the estate has no cash. For further information, read Inheritance tax.
You will need to review your will from time to time
It is important that you review your will and amend it to reflect any changes in your life. For instance, you may want to include any future children as residual beneficiaries. See Reasons to make a will for more information.
Making changes to your will
You can make changes to your will by using a codicil - a document that allows you to make minor amendments to an existing will without completely re-writing it. Ideally, a codicil should be kept with your original will - codicils can get lost and raise questions over the original will. For more information, read Codicils. You can make a codicil using our Codicil template.
Formally signing and executing your will
There are very strict formalities which you must follow when signing your will. Read Executing a will to find out what you need to do.
Assets outside of the UK
Many people have foreign assets outside of the UK. This is especially true if people move to different countries, have dual nationality or own holiday homes outside the UK.
Those with foreign assets are often advised to make a will dependent on where the assets are located, eg if you have assets located in the UK and in France, you should make two wills; one dealing with assets in England and Wales and another dealing with assets located in France.
This is because each country has different laws regarding inheritance, probate and even tax on assets. An international will would have to be drawn up by a local lawyer of that country, taking into account the rules on inheritance and probate of that country. This will make it easier to implement the will and make sure it is valid and recognised when the issue of foreign assets arises.
If you decide to create multiple wills, it's essential that they don't conflict with each other or revoke (ie cancel) the other wills. Your solicitor in each country will have to liaise with the other(s) to make sure this does not happen.
The UK has relatively flexible rules on inheritance and how we can leave our assets in our wills. A testator in the UK has complete freedom to leave their assets to whomever they want. This is known as 'testamentary freedom'. However, many foreign countries do not allow or recognise testamentary freedom. Many countries apply a concept called 'forced heirship', where a percentage of the person's assets must be transferred to their 'heirs' at the time of death. Forced heirship is a policy adopted in France and Spain, but also applies in many other European countries.
It is possible to disapply the rules on forced heirship. This will depend on many factors such as where the testator currently lives, where they hold property and what law the testator has decided will apply to their will. It is best to speak to a lawyer within the country where you hold assets and work out what is best for you.