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Elements of a will

When you make a last will and testament, it's important to understand the different elements that make up your will. These include the testator, the executors, legacies and bequests, the beneficiaries, the residuary estate, foreign assets, children and guardians. Read this guide to find out more.
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A testator (or testatrix) is someone who has made a valid will or has died and left a valid Will. The will is a document that records how the deceased wants to dispose of their property and estate. A person who dies without having made a valid will is said to have died intestate.

An executor (or executrix) is someone who carries out the administrative duties and tasks required to make sure the testator's wishes are followed according to their will. This person sorts out the property when the testator dies, pays any inheritance tax due and applies for probate

You can have up to four executors in your will, who can also be beneficiaries of the will (ie they can also inherit something from the will). All executors must be over the age of 18.

In Scotland, the executor must obtain ‘confirmation’ or authority to administer the estate from the Sheriff Court.

Who should I appoint as executor?

You should appoint someone you trust as an executor as it'll be up to them to follow the instructions set out in your will.

When you've confirmed who your executor is going to be, it's important you record their full name and address in your will. The executor will need to be located and contacted when they are needed to fulfil their duties.

This depends on how many executors are appointed and where you are located.

England and Wales - if there is more than one executor

If one named executor dies before the will is activated, and a grant of probate is issued by the court, the remaining executors will be responsible for dealing with the estate. The remaining executors will take over the deceased executor's responsibilities.

If all of the named executors die before the testator, then the beneficiary (or beneficiaries) receiving the largest sum of the estate under the will has the right to deal with the estate. 

England and Wales - if there is only one executor

If only one executor is appointed, and they are not also a beneficiary of your will, the situation is different. 

If a sole executor dies before the testator, the beneficiary (or beneficiaries) receiving the largest sum of the estate under the will has the right to deal with the estate. 

If the sole executor dies after probate has been issued and before they have completed the administration of the estate, then you must find out whether they had a will. 

If the executor left a will it is up to the executor of the executor’s affairs to finalise your estate. This is called the ‘chain of representation’. It essentially means that the executor of your executor’s estate will also become the executor of your will.

If a sole executor did not leave a will, then their beneficiaries who are receiving the largest sum will act as their executors. This means they will also take over the administrative duties of your estate.

In Scotland

In Scotland, if an executor dies, any surviving executor(s) may deal with the estate. If there are no surviving executors, the court can appoint one.

Joint executors are executors that work together in administering an estate. This is a common approach used to help lighten the workload of managing an estate. 

You can appoint joint executors in your will. However, you need to ensure that they have your best interests at heart and will follow your wishes according to the will. Conflict can also arise between joint executors for a variety of reasons, including because of:

  • critical differences in opinion about how to administer the estate most effectively

  • an action that one executor takes without having first sought the agreement of the other

As a result, it’s important to ensure that the individuals you have appointed to act as joint executors can work well together.

Beneficiaries of a will are the named individuals or charities who will inherit your  assets or estate. The will identifies and defines who the intended beneficiaries are and the inheritance they will receive.
A beneficiary is entitled to know that they have been named in a will as a beneficiary, along with the full inheritance they have been designated. However, the beneficiary is only entitled to receive, appraise or view their inheritance after the executor has successfully applied for probate and ownership of the assets has transferred to the beneficiary.

Legacies and bequests are the types of gifts or assets you want to leave to your beneficiaries. There are several types of legacies and bequests that a testator can leave, including:

Specific gifts

A specific gift is where a specific or particular named item is left as a gift in the will (eg a piece of jewellery, books, paintings or antiques). A specific gift will need to be accurately described in the will so that the executor and beneficiaries will know which exact item the testator wanted to leave to their beneficiary. 

A specific gift won't be valid if the item in question doesn't exist as part of the deceased's estate at their time of death. In this case, the specific gift is said to be 'adeemed' which means that the beneficiary will not receive any gift.

Pecuniary gift

A pecuniary gift is a gift of money. If a pecuniary gift is directed to be paid to the beneficiary in instalments, this is called an 'annuity'.

Residuary gift

A residuary gift is when a person leaves a percentage of their estate after all the other gifts have been made by the executor and any debts and inheritance tax have been paid. The beneficiaries who will receive the residue of the testator's estate are called the 'residual beneficiaries'.

Contingent gifts

These are gifts in the will made by the testator to the beneficiaries depending upon the occurrence of an event. An example of a contingent gift is a gift to a charity that applies only if the other beneficiaries named in the will die before the testator.

Once the executor has administered the estate, distributed gifts and paid any administrative costs (eg debts, probate and inheritance tax), any assets leftover will form the residuary (the remainder) of your estate. This is all the leftover cash, assets and property that weren't distributed according to the will. This can happen if the testator forgot to mention something in their will or intended for any residual beneficiaries to inherit what was left over. It’s not uncommon for a residuary gift to make up most of an estate, for example, if a testator wants to leave the majority of their assets to a single person.

Foreign assets are assets that are located outside of the country in which the testator lived or created their will. If you own foreign assets, you are advised to make a will dependent on where the assets are located. For example, if you own a second home in France, but live in the UK, you should have a UK will that deals with your assets in the UK. You should have a separate French will that deals with your property in France.

For more information, read Making your will.

Children under the age of 18 cannot inherit under a will. If a testator wants to leave a gift to a child, it will be held in a trust for them until they turn 18 (or a different age, based on the terms of the trust). The definition of ‘child’ in a will is broad and can include step-children. Therefore, in situations where children are involved, it is best to specifically name all children (including step-children and biological children) within the will.  

Should I appoint a guardian in my will?

If you have children under the age of 18, it may be appropriate to name guardians in your will. A guardian is an adult who will look after your children if both of their parents die (or if one parent dies and the other is unable to act, eg because they are in prison). Without nominated guardians, the courts will decide who will look after any children. 

For more information, read Appointing a guardian.

A trust is a legal arrangement that allows for assets, such as property, to be looked after on behalf of a beneficiary. The person who looks after the assets is called the 'trustee'. The person who creates the trust is called the 'settlor'. 

If the settlor creates a trust during their lifetime then it's usually evidenced in a trust deed. However, if the settlor wants it to be created shortly after their death, then this is inserted as a provision in their will. This is known as a 'will trust'.

Whether a trust is created during the settlor's lifetime or after their death, the trust document will state who is responsible for managing the trust for however long the trust lasts. Trustees owe a legal duty to the trust's beneficiaries and therefore must act in the best interests of the beneficiaries. Choosing your trustee must be a careful choice, taking into consideration their trustworthiness, financial responsibility, and whether they have the administrative skills to manage the trust properly.

When is a trust used?

A trust is used as a way of protecting assets and controlling how they are used after they've been given away. When a settlor makes an outright gift, either during their lifetime or after their death, the beneficiary assumes all rights and control over the assets. The creation of a trust enables the settlor to attach conditions to the assets. For example, the settlor may require that the assets can't be given away during their lifetime.

Trusts are also used if an asset is being given to someone under 18 or a vulnerable person. Examples of a 'vulnerable person' include:

  • a disabled person

  • a person who lacks mental capacity

  • a person who has a medical condition, such as an addiction disorder which causes substance or gambling addiction

For more information, read Trusts.

A witness to a will is someone who confirms that the testator signed their will. By signing a will as a witness, the witness verifies that they watched the testator sign their will.

Who can witness a will?

This will depend on where you are located.

In England and Wales

Under the Wills Act 1837, for a will to be valid, it needs to be signed in front of two independent witnesses. There are certain rules to follow as not everyone can be a witness to a will.

It's important that witnesses are independent. Therefore they should not be people who:

  • are your family members

  • are your spouse/civil partner

  • are beneficiaries under the will

  • are under 18

Witnesses should also not be:

  • lacking mental capacity or sufficient understanding

  • blind or partially sighted 

Such situations could prevent somebody from being able to adequately witness you signing your will.

People usually ask a local solicitor or their GP to be a witness. However, both must be present when you sign your will. 

An executor can witness a will provided they meet the witnessing criteria above.

In Scotland

In order for a Scottish will to be valid, it needs to be signed in front of one independent witness. There are certain rules to follow as not everyone can be a witness to a will.

While anyone can act as a witness to a will in Scotland, they must:

  • be over 18

  • be of sound mind

  • know who the testator is

It is also advisable for the witness not to be a beneficiary under the will, as this may allow the will to be challenged. 

For more information on the witnessing requirements in the UK, read Executing your will.

As a result of the probate process in England and Wales (or confirmation process in Scotland), a will eventually becomes a public document.

To ensure that the identity of those listed in a will is protected, only their names and relationship should be included within the will itself. If further information is required to identify those listed within the will, then this information should be included in a letter or annexe which is stored along with the will.

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