Legal Advice On Wills

CLS Direct Information Leaflet 10 07
July

Wills and Probate
Dealing with someone’s affairs
when they die

A free and confidential service paid for by legal aid
0845 345 4 345 www.clsdirect.org.uk

When a person dies, someone has to deal with their affairs and decide
what will happen to the things they owned.
This leaflet explains what the law says about how this should happen.

Why should I make a will? 3
What makes a will valid? 3
Who can be a witness? 3
What does an executor or administrator do? 4
What is probate? 4
Will I have to pay inheritance tax? 6
Who takes charge if there is no will? 7
Who gets the estate if there is no will? 9
What can I do if I think there is something wrong with the will? 10
What can I do if I think the will is unfair? 11
What if there isn’t enough money to pay for the funeral? 12
What if there isn’t enough money to pay the person’s debts? 12
Terms used in wills and probate matters 13

The leaflets in this series give you an outline of your legal rights. They are not a complete
guide to the law, nor do they explain how the law will apply to you or to any specific situation.
The leaflets are regularly updated, but the law may have changed since this was printed, so
information in it may be incorrect or out of date.
If you have a problem, you will need to get more information or personal advice to work out
the best way to solve it. See ‘Further help’ on page 15 for sources of information and advice.

Dealing with someone’s affairs when ‘mentally capable’ (which means
they die is often distressing. But it can they fully understand what they are
also seem difficult and confusing.This doing in writing their will); and
can be made worse by the unusual
at least 18 years old (though you
words and expressions that are used
can make a will if you are younger
to describe who does what and the
and on active military service).
procedures when someone dies.
The will must:
See ‘Terms used in wills and probate
matters’ on page 13 for explanations have been made without ‘undue
of many of these words. influence’ (for example, without a
threat from someone);
Why should I make a will?
be in writing;
When you make a will, you can say how
be signed by the person whose will
your funeral should be dealt with, and
it is (the ‘will-maker’ or ‘testator’)
what will happen to your possessions
and by two witnesses, who must all
and assets when you die. If you die
be together at the signing (see ‘Who
without making a will (called ‘dying
can be a witness?’ below); and
intestate’), it can be complicated to
work out who will get what. be dated when it has been signed.
The Administration of Estates Act 1925 No amendments or additions should
sets out who can apply to deal with be made after the will has been signed.
your affairs if you die intestate (called
‘administering the estate’) and how Who can be a witness?
your belongings are to be shared. But
Any person who is over 18 can sign as a
several people may have an equal right
witness. However, the witnesses should
to administer your estate (for example,
not be people who benefit from the
your children).When several people are
will or who are appointed executors
equally entitled to act as administrator,
(or the husband or wife of one of these
the usual rule is ‘first come, first served’.
people). If you witness a will and you
However, without a will, there may be
are named as someone who will
dispute or uncertainty.
benefit from it, you will lose your right
What makes a will valid? to that benefit when the person dies.
For a person to make a valid will, they Special rules apply in certain situations.
must be: For example, if a blind person or

3 Wills and Probate: Dealing with someone’s affairs when they die

someone who can’t read or write wants value of the estate to the Capital Taxes
to make a will, you should speak to an Office. (See ‘Will I have to pay
adviser to find out more about this. inheritance tax?’ on page 6.) Even if
See ‘Further help’ on page 15 for the executors believe there is no
details of where you may be able to inheritance tax to pay, they must
find an adviser. complete a form giving details of the
assets and certain gifts made by the
What does an executor or person who died.
administrator do?
The executors may have to deal with
The executors are the people claims about unfair treatment if a
appointed in a will to deal with the relative or someone who is a
estate of the person who has died.An dependant of the person who has died
administrator is the person who deals thinks that what they have been left in
with the estate of a person who has the will isn’t fair, or that they have been
died intestate (without a will).The left out unfairly (see ‘What can I do if I
executor or administrator may both think the will is unfair?’ on page 11).
be called a ‘personal representative’.
If you are an administrator acting
If a person has died leaving a valid will, where there is no will and you handle
the executors can normally arrange all the matters personally (rather than
the funeral straight away. However, using a solicitor), you will be personally
there may be a delay, depending on liable (responsible) if you don’t follow
how the person died. the ‘rules of entitlement’ (the rules
governing who gets what) correctly.
The executors can also take charge of
For example, you cannot give more to
the house and possessions of the
someone the dead person liked, or
person who has died unless it passes
refuse to pay the correct share to
automatically to a joint owner (for
someone the dead person disliked,
example, the person’s living husband
even if the dead person had discussed
or wife). But if there is a will, they must
this before they died.
follow what it says.
The executors must then work out What is probate?
whether they need to apply for probate.
Probate (or more specifically ‘probate
(See ‘What is probate?’ opposite.)
of the will’) is an official form that gives
If there is (or could be) inheritance tax the executors of the will the right to
to pay, the executors must report the deal with the assets and property of


the dead person.When you show the banks and building societies have
probate form to a bank, for example, the right to insist on probate in
they know they are dealing with the this case).
person who has the right to handle the
However, you will need to apply for
estate, and they will allow you to
probate if the person who died had:
withdraw money from the dead
any bank, building society or
person’s account.
National Savings accounts with
When you apply for probate, you are
more than £5,000 in them;
promising the Probate Court that you
stocks or shares; or
will deal with (‘administer’) the estate
as set out in the will and according to property or land (unless it is owned
law. If you don’t do this, you will be in as a joint tenancy and so passes
trouble with the court (and with the automatically to the other owner).
people who should benefit from the
You may have to apply for probate if
will). Probate makes sure that the
the person had any life insurance or
executors carry out their task properly.
term insurance policies that are paid
When there is no will (or there are no to the estate. Some kinds of policy say
executors named in the will or the that they will be paid straight to the
executors have died), the official form beneficiaries of the policy (rather than
is called ‘letters of administration’. to the estate), and you do not need
probate for these.
Do I always need to get probate?
You will have to apply for probate if
In some cases, you don’t need to apply
the person who has died gave away
for probate.This is when:
large gifts or sums of money (which,
the person who has died left very
with the person’s other assets, total
little (say, belongings and money
more than a certain amount, called the
amounting to less than £5,000);
‘nil rate band’) in the seven years
everything they owned was held in before they died. If so, inheritance tax
joint names with someone to whom must be paid on the amount over the
their share passes automatically nil rate band. The amount of the nil
(normally a husband or wife); or rate band is reviewed each year – see
‘Will I have to pay inheritance tax?’ on
any bank or building society
page 6. Even if these gifts were not
accounts that the person had
worth more than the nil rate band,
contain less than £5,000 (though
their value must be added to the

5
Wills and Probate: Dealing with someone’s affairs when they die

assets of the dead person, because the probate registry.The registry can send
amount of inheritance tax is based on you information packs.These include
the value of the estate plus the value probate application forms and
of any gifts made in the seven years information on how to fill them in.
before they died (excluding certain You can also talk to registry staff if
annual allowances). you are having difficulty filling in a
probate application.
There is an important exception to the
seven-year limit on gifts: if the person
Will I have to pay inheritance tax?
who died gave away their home but
Whether or not you, as the executor,
continued to live in it rent-free, its
have to pay inheritance tax out of the
value will count towards the assets on
estate depends on:
which inheritance tax must be paid,
regardless of when they gave it away. how much the property and
belongings of the dead person
In most cases where there is no will
were worth when they died;
you must apply for ‘letters of
administration’, which serve the same the value of any trust from which
purpose as probate.You apply for a the dead person benefited;
grant of letters of administration in
the value of certain gifts the
the same way you would apply for
person made in the seven years
probate. However, as with probate,
before they died, or longer if they
you may not have to apply for letters
‘reserved an interest’. (An example
of administration if the person’s estate
of reserving an interest would be if
was not worth very much.
they gave away their house on the
How do I apply for probate? condition that they were allowed
to live there free of charge or for
You may apply in person for probate or
very low rent until they died.)
letters of administration, or you may
instruct a solicitor, who can apply on If all these add up to more than a certain
your behalf.You apply to: amount (called the ‘nil rate band’), the
estate has to pay inheritance tax at 40
the Principal Registry (in London); or
per cent on the sum of money above
a district probate registry (in other
this amount.The amount is reviewed
cities and many large towns).
every year. It is £300,000 for the year
See ‘Further help’ on page 15 for the April 2007 to March 2008 and will rise
number to call to find your nearest to £350,000 by April 2010.


Not all gifts made within the seven- The cost of legal advice will be paid out
year period have to be included in the of the estate. If you get the calculation
tax calculations.All gifts between wrong without having taken advice
husbands and wives are exempt from and you pay the beneficiaries without
tax, as are those between same-sex paying the right amount of tax, you
partners in a registered civil partnership may have to pay what is owed out of
(see ‘Same-sex relationships’, opposite). your own pocket.
You can also make exempt gifts in
The executors or administrators are
other ways, including:
responsible for paying any inheritance
a single gift of £3,000 each year; tax that is due out of the assets of the
estate, and it is due six months after
any number of ‘small gifts’ of under
the end of the month in which the
£250 each to different people;
person died. Some or all of the
gifts to charities or political parties; inheritance tax will have to be paid
before you can obtain probate or
£5,000 to your child if they are
letters of administration.
getting married; and
Same-sex relationships
gifts that can be described as
‘normal expenditure’ out of your
Same-sex (gay or lesbian) couples
income (which means, for
who have registered their relationship
example, that it would not reduce
as a civil partnership have the same
your standard of living).
tax advantages as married couples.
If you give away your house but Similarly, if a civil partnership breaks
continue to live in it without paying a down, the couple face the same legal
proper rent (called ‘reserving an problems as a married couple
interest’), the value of the house will (though a legal separation is called a
have to be included in the inheritance dissolution rather than a divorce).
tax calculations when you die, even if
Who takes charge if there is no will?
you made the gift more than seven
years before your death.
If you, as next of kin (or someone else
with similar powers), believe that
Inheritance tax is complicated, so you
someone who has died has left a will,
should get specialist legal advice
but no one can find it, you can take
straight away if you are an executor
steps to find out if they made one.
and the Probate Registry tells you that
you may have to pay inheritance tax.

7

These can be: with the same mother and father, or
descendants of the brothers or sisters.
searching the belongings of the
person who has died for any 5. Their half-brothers or half-sisters
evidence that they made a will (for (who had either the same mother or
example, a letter from a solicitor); the same father) or their descendants.
phoning or writing to solicitors 6. Their grandparents.
and banks that the person might
7. Their uncles and aunts ‘of the whole
have used;
blood’ (this means brothers and
applying to the Principal Probate sisters of their parents, as long as
Registry to see if the person who they had the same mother and father
died left their will there; and themselves) or their descendants.
placing advertisements in 8. Their uncles and aunts ‘of the half
newspapers and legal journals. blood’ (this means brothers and
sisters of their parents if they had
If there is no will, the person’s estate
only the same mother or father) or
will be shared out under the ‘rules of
their descendants.
intestacy’.These rules set out:
9. The Crown (the state) if there are no
who deals with the estate; and
relatives.
who benefits from it.
If several people have an equal right to
The person who will deal with the deal with the estate (for example,
estate is the closest living relative to brothers and sisters),letters of
the dead person, chosen in this order: administration will normally be given to
the first of these people who applies for it.
1. The husband, wife or registered civil
partner of the person who has died However, there can be a problem when,
(but not their unmarried or for example, the dead person has
unregistered partners). several brothers or sisters who all want
to be in charge of the funeral or
2. Their children (aged over 18) or
administration. If they cannot agree
their children’s descendants (for
about this themselves, they must apply
example, grandchildren, if they are
to the Probate Court, which will decide
over 18).
who will take responsibility.This
3. The dead person’s parents. process is complicated and you would
probably need help from a solicitor.
4. The dead person’s brothers or sisters


Remember, too, that legal disputes (for example, the income or
cost a lot of money and take time to interest if the money is invested,
resolve.The costs will probably be but not the money itself). The
taken out of the estate, if the court capital (the original amount)
agrees to this. But otherwise, you risk passes to their children when the
being left with a large bill. surviving husband or wife dies.
The children of the deceased, including
Who gets the estate if there is
illegitimate and adopted children,
no will?
share between them:
Any inheritance tax must be paid.After
half what is left straight away, if
that, all debts (including mortgages
they are 18 or over; and
and other loans) must be repaid ,
the other half when the surviving
whether the dead person has made a
parent dies.
will or not.After that, the
Administration of Estates Act 1925
Stepchildren get nothing (unless they
sets out who gets what in every
are named in a will).If one of the children
situation where there is no will. Some
has already died,leaving children of their
of the more common situations are
own,their share will pass to those
as follows.
children (that is,the grandchildren of the
If there is a husband, wife or civil person whose estate is being dealt with).
partner, but no other relatives
If there is a husband, wife or civil
partner, and relatives (but no
The husband, wife or registered civil
children)
partner gets everything (but their
unmarried or unregistered partner
The husband or wife gets:
gets nothing).
the ‘personal chattels’ (see ‘Terms
If there is a husband or wife and
used in wills and probate matters’
children
on page 13);
The husband or wife gets:
the first £200,000; and
the ‘personal chattels’ (see ‘Terms
half what is left.
used in wills and probate matters’
The parents of the dead person, or, if
on page 13);
they have died, the brothers and sisters
the first £125,000; and
or their descendants, share the other
a life interest in half of what is left half of what is left.

9

(this means brothers and sisters of
If there are children, but no living
the parents of the dead person who
husband, wife or civil partner
had only the same mother or
The children share everything equally.
father), or
If one of the children has already died,
7. the Crown (the state).
leaving children of their own, those
children will share what their parent One common area of
would have inherited if the parent had misunderstanding is over what
been alive. If the children are under 18, happens when a person dies without a
their share will be looked after by will, leaving children or brothers and
personal representatives acting as sisters, but one of these children or
trustees until they reach 18. brothers or sisters has already died,
leaving children or grandchildren of
If there is no husband, wife, civil
their own. In this situation, those
partner or children
children or grandchildren will get the
Everything will pass to the next
share that their parent would have got,
available group of relatives, in the
had they been alive.
same order as that for applying for
Similar rules apply so that, for
letters of administration.This means:
example, where an uncle has already
1. the parents of the dead person;
died leaving children, those children
2. brothers or sisters of the dead will get the share the uncle would have
person who have the same mother got if he had been alive.
and father, or their descendants;
What can I do if I think there is
3. half-brothers or half-sisters (who
something wrong with the will?
had either the same mother or the
The most common reasons for a will
same father), or their descendants;
not being valid are when:
4. grandparents;
the person who made the will did
5. uncles and aunts ‘of the whole
not get their signature witnessed;
blood’ (this means brothers and
the witnesses were not together
sisters of the parents of the dead
when the will was signed; or
person, as long as they had the
same mother and father the person who made the will got
themselves), or their descendants; married after making their will.
6. uncles and aunts ‘of the half blood’ Also, if one of the witnesses is a


beneficiary to the will,they lose the right anything that you specifically mention
to what the will says they should have in the will as going to your former
(though the rest of the will is still valid). husband, wife or partner is ignored.
The rest of the will is still valid.
You can lodge a ‘caveat’ at a probate
registry to stop probate or letters of
What can I do if I think the will is
administration being granted if:
unfair?
you think there is something
If you are unhappy because you have
wrong with the will; or
been left out of a will altogether or
someone is applying for letters of because you have been left without
administration when they don’t ‘reasonable financial provision’, you
have the right. may be able to make a claim under the
Inheritance (Provision for Family and
However, you will need specialist legal
Dependants) Act 1975. But you can do
advice if you are in this position.
this only if you are:
Other reasons may make a will invalid,
the husband, wife or civil partner
including:
of the person who has died;
the person was not mentally capable
the former husband or wife of the
when they made the will; or
person who has died, if you have
they made the will under ‘undue not remarried or given up your
influence’ from some other person. claim when you got divorced;
It is difficult to prove that a will is a partner who lived with the
invalid.You would normally need deceased for at least two years
medical evidence to show a person immediately before the death;
was not mentally capable when they
a child of the person who has died;
made their will, and you would need
a person who was treated as a
specialist legal help.
child of the family by the person
If you get married or register a civil
who has died when they were
partnership, your will automatically
married (normally, a stepchild); or
becomes invalid, unless you mention
someone who was totally or partly
your forthcoming marriage or civil
maintained (supported financially)
partnership in the will.
by the person who has died.
If you get divorced or dissolve your
If you think you may be able to claim
civil partnership after making a will,

11

against the estate because you are in page 15 for details of how to contact
one of these groups,you should get legal them).
advice.Claiming against an estate is
What if there isn’t enough money to
complicated,and there is no guarantee
pay the person’s debts?
that a court will agree with your claim.
The result depends on the circumstances When someone dies,their debts don’t
of the case.There are time limits and die with them.They have to be paid out
other conditions you need to know of the person’s estate.
about.You must lodge your application
If you are administering an estate, you
within six months of probate or letters of
must make sure you have paid all the
administration being granted.You could
debts before you pay the beneficiaries.
face a large bill if the court refuses your
If you are not sure what the debts are,
application or does not decide that the
you need to advertise in the London
costs should come out of the estate.
Gazette and a local paper for anyone
who may have a claim on the estate,
What if there isn’t enough money to
and then wait two months before
pay for the funeral?
paying the beneficiaries.The London
By asking a funeral director to conduct
Gazette is a weekly government
the funeral,you make a contract
publication that contains various legal
agreeing to pay for the funeral.This
notices (see ‘Further help’ on page 15
means that,if you are the executor or
for its phone number).You could
administrator,you should do this only
become liable (responsible) for the
after you have made sure that there is
debts if you pay the beneficiaries
enough money in the estate to pay for
without having cleared all the debts
the funeral.Otherwise,you should be
first.You may also have to submit a tax
willing to pay any part of the bill that
return for the person who has died.
won’t be covered by the estate.
If there is not enough money to pay all
If you need to arrange a funeral when
the debts, they must be paid in a
there is not enough money in the estate
particular order:
to pay for it and you are receiving a
1. the funeral expenses and
means-tested benefit,you may be
‘testamentary’ expenses (those to
eligible for a Funeral Payment grant from
do with dealing with the will);
the Social Fund.For more information
about this,contact your local Social 2. any debt secured by a mortgage on
Security Office (see ‘Further help’on property;


3. HM Revenue and Customs; parents who were unmarried), but not
their stepchildren (unless they are
4. the Department of Work and
specifically mentioned).
Pensions, who deal with social
security (you may have to refund Common-law spouse This term has
any over-payment of benefits); no legal force, although a partner who
lived with the person who died for two
5. unpaid pension contributions or
years before their death might be able
wages.
to claim a share of the estate.
If all the debts can be paid,but there isn’t
Devise A gift of a house or land.
enough money left to pay everything set
out in the will,the legacies (those where Demise A lease of a house or flat.
a specific amount is mentioned) will be
Estate All the assets and property of
paid first,and the other people
the person who has died, including all
mentioned will get what is left over.
houses, cars, investments, money and
If there is not enough to pay all the belongings.
legacies,the people entitled to the
Executor The person appointed in the
legacies will get a proportion of what
will to deal with the estate of a person
they have been left,depending on how
who has died.
much money is available.The other
Inheritance tax The tax that may have
people mentioned in the will,who are
to be paid when the total estate of a
supposed to get the remainder,will
person who has died is more than a
get nothing.
certain amount (currently £300,000).
Terms used in wills and
Intestate Without a will, or a person
probate matters
who dies without having made a will.
Administrator The person who deals
Issue All the descendants of a person
with (administers) the estate of a
(children, grandchildren, great-
person who has died intestate
grandchildren and so on).
(without a will).
Legacy A gift of money (usually a
Bequest A gift of a particular object
specific amount).
(for example, an item of jewellery).
Letters of administration The
Child In will or intestacy matters, the
document issued to the administrators
children of the person who has died
by the Probate Registry to authorise
include adopted children and
them to deal with the estate.
illegitimate children (children born to

13

Life interest The right to receive the Probate registry A court within the
income or benefit from a property or Family Division of the High Court
capital sum (but not the capital sum which deals with probate and
itself) for life. administration matters.The Principal
Registry is in London and there are
Minor A person under 18.
district registries in other cities and
Next of kin In will or intestacy some large towns.
matters, the person entitled to the
Real estate (realty) Land and
estate when a person dies intestate
buildings owned by a person.
(without a will).
Remainder man The person who gets
Nil rate band The value of an estate
the property or capital sum after the
up to which inheritance tax is not
death of the person holding a ‘life
payable.
interest’.
Personal chattels Personal
Residue What is left to share out after
belongings, including jewellery,
all the debts, inheritance tax and
furniture, wine, pictures, books and
specific bequests and legacies have
cars (but not money, investments,
been paid.
property or business assets).
Specific bequests Particular items
Personal estate (personalty) All the
gifted by the will.They may be called
investments and belongings of a
‘specific legacies’.
person apart from land and buildings.
Testator A person who makes a will.
Personal representative A general
Testatrix is sometimes used to mean a
term for administrators and executors.
female will-maker.
Probate of the will The document
Will The document in which you say
issued to executors by the probate
what will happen to your money and
registry to authorise them to deal with
possessions on your death.
the estate.
Proving the will Making the
application for probate to the
probate registry.


Further help The Community Legal Service
Community Legal Service Direct The Community Legal Service has been
Provides free information direct to set up to help you find the right legal
the public on a range of common information and advice to solve
legal problems. your problems.
Call 0845 345 4 345 You can get help through a national
network of organisations including
If you qualify for legal aid, you can also
Citizens Advice Bureaux, Law Centres,
get free advice from a specialist legal
many independent advice centres and
adviser about benefits and tax credits,
thousands of high street solicitors. All of
debt, education, employment and
these services meet quality standards set
housing. You can also find a local legal
by the Legal Services Commission. Look
adviser or solicitor.
for the Community Legal Service logo,
shown below.
Click www.clsdirect.org.uk to find
out more.
Many of the organisations offer some
or all of their services for free. If you
Probate registries
cannot afford to pay for advice you may
There are probate registries in cities and
be eligible for financial support through
larger towns. The Probate and Inheritance
the Community Legal Service Fund
Tax Helpline will tell you where your
(Legal Aid). You can order leaflets about
nearest registry is, and can also answer
funding from the LSC Leaflet line on
questions and send you information
0845 3000 343. You can also use a Legal
about applying for probate or letters of
Aid eligibility calculator on the website:
administration.
www.clsdirect.org.uk
phone: 0845 302 0900
There is also a list of probate registries
on the Courts Service website:
www.hmcourts-service.gov.uk/cms/1163.htm
Social Security
For more information about getting
financial help if the person who died did
not have enough money to pay for their
funeral, contact your local Social Security
office. It is listed in the phone book under
The Legal Services Commission (LSC)
‘Job Centre Plus’. Ask for leaflet SB16.
The Community Legal Service and the
Law Society
Community Legal Service Fund are
phone: 020 7242 1222
managed by the Legal Services
www.lawsociety.org.uk
Commission. To find out more about
The London Gazette us visit our website at
phone: 0870 600 5522 www.legalservices.gov.uk or find the
details for your local Legal Services
www.gazettes-online.co.uk
Commission office in the phone book.
Citizens Advice
Your local Citizens Advice Bureau is listed
in the phone book
www.citizensadvice.org.uk/cabdir.ihtml

The leaflets are also available online at: www.clsdirect.org.uk

1 Dealing with Debt 20 Education
2 Employment 21 Immigration and Nationality
3 Divorce and Separation 22 Mental Health
4 Renting and Letting 23 Alternatives to Court
5 Buying and Selling Property 24 Family Mediation
6 Losing your Home 25 Veterans
7 The Human Rights Act 26 Domestic Violence, Abuse and Harassment
8 Claiming Asylum 27 Living Together and your Rights if
9 Welfare Benefits you Separate
10 Wills and Probate 28 Dealing with Someone Else’s Affairs
11 Dealing with the Police 29 Care Proceedings
12 No-win, No-fee Actions 30 Neighbourhood and Community Disputes
13 Problems with Goods and Services 31 Changing your Name
14 Medical Accidents
Advice Guides
15 Equal Opportunities
G1 A Step-by-Step Guide to
16 Racial Discrimination
Choosing a Legal Adviser
17 Personal Injury
18 Rights for Disabled People G2 A Step-by-Step Guide to Legal Aid
19 Community Care

The leaflets are also available in Welsh, Braille and Audio.
To order any of these leaflets contact the LSC leaflet line on 0845 3000 343
or email LSCLeaflets@ecgroup.uk.com or fax 020 8867 3225.

This leaflet is published by the Legal Services Commission
(LSC). It was written in association with Paul Elmhirst,
a solicitor specialising in wills and probate.

LSC010E

Legal Advice On Wills

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