What is a will?
A will is a legally binding document which sets out what should happen to your money, possessions and property, collectively called your ‘estate’. It can also deal with the guardianship of any children who are minors, after you pass away.
Why should I have a will?
A will enables you to:
• choose who will get your property after your death;
• choose how your property will be divided among your various beneficiaries;
• give specific items of property to specific people;
• appoint someone you trust to administer your estate; and
• appoint a guardian for your minor children.
If you die without a will, your property will be distributed by a court-appointed administrator according to statutory rules for "intestate succession." Your property will be divided among your surviving spouse, children, and possibly other relatives in whatever manner the law of your jurisdiction specifies.
Who can make a will?
To make a will in England & Wales you must be 18 years old or older. In addition, you must be of "sound mind" to make a will. Being of sound mind means:
• You understand you are making a will and you know what a will is;
• You understand your relationship to those mentioned in your will; and
• You understand what types of property you own, how much of that property you own and how you intend to distribute that property.
When should I change my will?
It is up to you to decide when to change your will. You should review your will from time to time to ensure that it still meets your needs and that your property will be distributed according to your wishes. It is especially important to review your will on the following events:
• You get married or divorced (a change in marital status may render your will void or annul certain provisions in your will);
• The amount of money and property you own significantly changes;
• Your Executor or a significant beneficiary in your will dies;
• There is a birth or adoption of a child in your family;
• You change your mind about the provisions in your will.
What is a codicil?
A codicil is an amendment to your will. A codicil is used when you are happy with the contents of your will but want to make minor changes. It leaves your original will intact but makes specific changes, such as adding or deleting a beneficiary. A codicil is signed and witnessed (executed) in the same manner as a will.
Do I need a will if I have a Power of Attorney?
Yes: a power of attorney for financial matters provides your chosen agent with the power and authority to deal with your property and make financial decisions for you only while you are alive. A power of attorney automatically ends on your death. Consequently, you need a will to specify how you want your estate distributed on your death.
What does "jointly-owned" mean?
Joint ownership (also called "joint tenancy") is different from other types of co-ownership. If you own property jointly with someone else, it means that both of you own all of the property. In other kinds of co-ownership each of you owns half of the property. Jointly owned property automatically becomes the property of the surviving owner when one of the owners dies. A typical example of jointly-owned property is where a husband and wife jointly-own their house. In that case, when one spouse dies, full title to the house automatically goes to the surviving spouse.
Parties Named in the Will
What is a testator?
A testator is the person who is making the will. A female testator is often referred to as a testatrix.
What is a beneficiary?
A beneficiary is a party who is receiving a gift from the testator. Beneficiaries can be people or organisations.
What is a devisee?
A devisee is a party who is receiving a gift of real estate from the testator.
What is an Executor?
An Executor is the person who will be carrying out the terms of the testator’s will and administering the testator’s estate. An Executor is sometimes referred to as a personal representative.
What does an Executor do?
An Executor is responsible for collecting the assets of the testator's estate, paying any debts of the estate, paying any applicable taxes, and distributing the assets of the estate in accordance with the directions of the will.
Whom should I select to be my Executor?
Administering the estate can be complex, time-consuming and stressful. Ensure you select someone you trust, who will be able to handle your financial matters prudently. Your Executor does not need to have any legal expertise. An Executor can always hire a solicitor should the need arise. Many people select their spouse or an adult child to be their Executor. Also, people often choose an individual who will be receiving a substantial amount of property to be their Executor. In this way, the Executor will want to ensure that the property is distributed properly.
Can I choose anybody to act as my Executor?
You may choose anyone to act as Executor except a minor. An Executor can be disqualified if they have been convicted of a crime. Additionally, some jurisdictions place restrictions on non-resident Executors.
Can my Executor be a beneficiary in my will?
Yes, your Executor can be a beneficiary in your will.
Wills and Your Spouse
Can a husband and wife make a joint will?
A joint will is a will made by two or more “testators” (the persons who make the will) contained in a single document. The law treats a joint will as being two or more separate wills. When the first of the testators die the joint will is admitted to probate as if it is the will of the testator who has died.
Does marriage revoke an existing will?
Under marriage laws in England & Wales, any pre-existing will is revoked when you enter into a legally binding marriage contract. This means that if you die without making a new will after you get married, the law will decide who should inherit from you.
Does divorce revoke an existing will?
While divorce won't fully revoke your will, your former spouse will no longer be able to benefit from your will as a beneficiary, or act as an Executor and/or Trustee. It is important to make sure that you review your will so that it's a reflection of your wishes.
Wills and Your Children
How do I address step-children?
Stepchildren are not your natural heirs unless you have legally adopted them. They are not included if you leave property to "all my children". If you want to leave something to your stepchildren, you must name them as beneficiaries in your will.
Do I have to list all my children?
You must list all children. Any child not specifically named in your will may have the right to claim against your will as if no will had been created.
What is a guardian?
A guardian is a person the testator appoints to look after the testator’s minor children when the testator dies.
Do I have to appoint a guardian for minor children in my will?
You do not have to appoint a guardian for your minor children however, if you do not, the courts will decide who will look after your children if no other person having parental rights survives you.
What should I consider when appointing a guardian?
When appointing a guardian you may want to consider the following questions:
• Will my proposed guardian be old enough to look after my children?
• Does my proposed guardian have experience raising children?
• Is my proposed guardian concerned about my child’s welfare?
• Is my proposed guardian able to care for my child emotionally, physically and financially?
• Does the proposed guardian have the time to take care of my children?
• Does my child like and feel comfortable around the proposed guardian?
• Where does my proposed guardian reside?
What assets should I consider when valuing my estate?
You may want to consider the following assets when valuing your estate:
• Your home
• Bank and Building Society accounts
• National Savings and Investments
• Life insurance policies
• Stocks and shares
• Premium Savings Bonds
• Interest in other people's estates
• Property and bank accounts abroad
What liabilities should I consider when valuing my estate?
You may want to consider the following liabilities when valuing your estate:
• Credit cards
• Personal loans
• Store cards
• Student loans
If these debts remain outstanding when you die, they will be paid out of your estate, along with inheritance tax and funeral costs, before the net amount left can be distributed to your beneficiaries
Does my life insurance form part of my estate?
Life insurance payouts will form part of your estate unless they are written in trust.
Do pensions form part of my estate?
Usually pensions cease to be payable on death. For this reason, unlike cash savings, pensions sit outside your estate and do not count towards the value of your estate for the purposes of inheritance tax.
What is a Specific Gift?
A specific gift is a gift of a specific item of property or sum of money to a named beneficiary. Everything that is not given away as a specific gift forms the residue of the estate.
What is the Residue of the Estate?
The residue of the estate is all of your property that is not used to pay your debts or given as a specific gift.
What is the difference between an absolute gift and a conditional gift?
An absolute gift is a gift of property that gives the recipient complete possession and control over the property. Upon receipt of the gift, the recipient owns the property and may do whatever s/he wants with it, subject, of course, to legal regulation for the use of the property. A conditional gift is a gift of property which is revocable if the recipient does not fulfil conditions attached to the gift.
Can I make a gift to a charitable organisation?
Yes, you can make a gift to a charitable organisation.
Can I make a gift to Jamati Institutions?
If you would like to understand how to make a gift to the Jamat or one of the Jamati agencies, such as Focus or AKF, you are respectfully requested to contact the President or Vice President of the National Council in the first instance.
How and what do I sign?
To properly execute your will, you will have to be present with your chosen witnesses. A valid will has to be in writing, physically signed by you, witnessed and signed by two people who must provide their full name, address and occupation. Both witnesses must be able to see you sign the will at the same time.
Can a beneficiary witness my will?
No beneficiaries should witness a will. In the event of a beneficiary or beneficiary’s spouse witnessing the will, the beneficiary’s share of the will may fail.
Can my Executor witness my Will?
Yes, but only if the Executor is not a beneficiary in your will.
Do I have to file my Will?
You do not have to file your will with any court system or government body. You can keep your will at your home, store it with your solicitor, your bank, or the London Probate Service. You should tell your Executor, relative or a close friend where your will is kept.
What law will apply concerning my will?
The governing law will be the law of the jurisdiction where you live at the time of your death. However, the probate court will want to verify that your last will was executed (signed and witnessed) correctly.
For further guidance regarding writing a will, the Legal Committee can be contacted at [email protected].
Please also see the following links for further information:
These FAQs are aimed at Jamati members located in England & Wales. The information contained in these FAQS is intended as general guidance only and not legal advice, as each individual’s circumstances will differ.