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10 Wills and Probate

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1. Introduction

2. Why should I make a will?

3. What makes a will valid?

4. Who can be a witness?

5. What does an executor or administrator do?

6. What is probate?

7. Will I have to pay inheritance tax?

8. Who takes charge if there is no will?

9. Who gets the estate if there is no will?

Any inheritance tax must be paid. After that, all debts (including mortgages and other loans) must be repaid, whether the dead person has made a will or not. After that, the Administration of Estates Act 1925 sets out who gets what in every situation where there is no will. Some of the more common situations are as follows.

If there is a husband, wife or civil partner, but no other relatives
The husband, wife or registered civil partner gets everything (but an unmarried or unregistered partner gets nothing).

If there is a husband or wife and children
The husband or wife gets:

  • the 'personal chattels' (see 'Terms used in wills and probate matters');
  • the first £125,000 (rising to £250,000 from 1 February 2009); and
  • a life interest (for example, the income or interest if the money is invested, but not the money itself). The capital (the original amount) passes to their children when the surviving husband, wife or civil partner dies.

The children of the dead person, including illegitimate and adopted children, share between them:

  • half what is left straight away, if they are 18 or over; and
  • the other half when the surviving parent dies.

Stepchildren get nothing (unless they are named in a will). If one of the children has already died, leaving children of their own, their share will pass to those children (that is, the grandchildren of the person whose estate is being dealt with).

If there is a husband, wife or civil partner, and relatives (but no children)
The husband or wife gets:

The parents of the dead person, or if they have died, the brothers and sisters or their descendants, share the other half of what is left.

If there are children, but no living husband, wife or civil partner
The children share everything equally. If one of the children has already died, leaving children of their own, those children will share what their parent would have inherited if the parent had been alive. If the children are under 18, their share will be looked after by personal representatives acting as trustees until they reach 18.

If there is no husband, wife, civil partner or children
Everything will pass to the next available group of relatives, in the same order as that for applying for letters of administration. This means:

1. the parents of the dead person;

2. brothers or sisters of the dead person who have the same mother and father, or their descendants;

3. half-brothers or half-sisters (who had either the same mother or the same father), or their descendants;

4. grandparents;

5. uncles and aunts 'of the whole blood' (this means brothers and sisters of the parents of the dead person, as long as they had the same mother and father themselves), or their descendants;

6. uncles and aunts 'of the half blood' (this means brothers and sisters of the parents of the dead person who had only the same mother or father); or

7. the Crown (the state).

One common area of misunderstanding is over what happens when a person dies without a will, leaving children or brothers and sisters, but one of these children or brothers or sisters has already died, leaving children or grandchildren of their own. In this situation, those children or grandchildren will get the share that their parent would have got, had he oe she been alive.

Similar rules apply so that, for example, where an uncle has already died leaving children, those children will get the share the uncle would have got if he had been alive.

10. What can I do if I think there is something wrong with the will?

11. What can I do if I think the will is unfair?

12. What if there isn´t enough money to pay for the funeral?

13. What if there isn´t enough money to pay the person´s debts?

14. Terms used in wills and probate matters

15. Further help

16. About this leaflet

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' for sources of information and advice.

This leaflet is published by the Gurkha Free Legal Advice (LSC).

Leaflet version: January 2009

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