Wills and Estate Planning
Making a will is one of the most important steps you can take to protect your loved ones and ensure your wishes are carried out after your death. Yet research consistently shows that a significant proportion of adults in England and Wales do not have a valid will in place – leaving their families to face uncertainty, potential disputes, and outcomes they might never have wanted.
At Heritage Park Family Law, we understand that thinking about what happens after your death is not easy. However, taking the time to create a properly drafted will can provide peace of mind, protect your family, and help avoid unnecessary heartache during an already difficult time.
This page explains everything you need to know about wills in England and Wales, including what happens if you die without one, how marriage and divorce affect existing wills, and how a will interacts with probate, trusts, and Lasting Powers of Attorney.
A will is a legal document that sets out your wishes regarding how your estate – your money, property, and possessions – should be distributed after your death. A properly drafted will allows you to:
For a will to be legally valid in England and Wales, it must be made by someone aged 18 or over who has mental capacity, it must be in writing, and it must be signed by the person making the will (the ‘testator’) in the presence of two independent witnesses who also sign the document.
Without a valid will, you have no control over what happens to your estate after your death. The law decides who inherits – and the legal rules may not reflect your wishes or family circumstances.
Making a will is particularly important if you:
When someone dies without leaving a valid will, they are said to have died ‘intestate’. Their estate must then be distributed according to the rules of intestacy – a strict legal framework that determines who inherits based on family relationships.
The rules of intestacy in England and Wales can produce outcomes that many people would find surprising or unwelcome.
If you die intestate and are survived by a spouse or civil partner but have no children:
If you die intestate with both a surviving spouse or civil partner and children:
If the estate is worth £322,000 or less, the surviving spouse or civil partner inherits everything and the children receive nothing under the intestacy rules.
The following people cannot inherit under the rules of intestacy, regardless of how close their relationship with the deceased:
This means that if you live with a long-term partner to whom you are not married, they may receive nothing from your estate if you die without a will – even if you owned your home together and intended for them to inherit.
If there is no surviving spouse, civil partner, or children, the estate passes to other relatives in a strict order: parents, then siblings (and their children if the sibling has died), then half-siblings, then grandparents, then aunts and uncles, then half-aunts and half-uncles, and finally to the Crown if no living relatives can be found.
People who are not entitled to inherit under intestacy may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they can demonstrate that the intestacy rules have not made reasonable financial provision for them. This includes cohabiting partners, stepchildren, and anyone who was financially dependent on the deceased.
Such claims can be costly, time-consuming, and emotionally draining for all involved – which is one of the strongest reasons for making a will.
Marriage has a significant and often overlooked effect on wills in England and Wales: getting married automatically revokes any existing will, unless the will was specifically made ‘in contemplation of marriage’ to a named individual.
This means that if you made a will before getting married and did not update it after your wedding, you are currently intestate – even though you believe you have a valid will in place.
Many couples are unaware of this rule, which can lead to serious unintended consequences. For example, if you made a will leaving everything to your children from a previous relationship and then remarried, that will is now invalid and your new spouse may inherit the majority of your estate under the intestacy rules.
If you are engaged and want your will to remain valid after marriage, it can be drafted ‘in contemplation of marriage’ to your named fiancé or fiancée. This allows the will to survive the marriage, but you should still review it after the wedding to ensure it reflects your married circumstances.
If you divorce and later remarry, the same rule applies – your new marriage will revoke any will you made after your divorce. This is particularly important for people with children from previous relationships, as remarrying without updating your will could inadvertently disinherit your children in favour of your new spouse.
Unlike marriage, divorce does not fully revoke an existing will. However, it does have important consequences.
When a divorce is finalised (upon the granting of the Final Order, previously known as Decree Absolute), any provisions in your will that benefit your former spouse are treated as if your ex-spouse had died before you. This means:
However, the rest of your will remains valid. This can create problems if you have not reviewed your will after divorce:
Until your divorce is finalised, you remain legally married. This means that if you die during divorce proceedings, your spouse may still inherit under the terms of your existing will or under the intestacy rules if you have no will.
Given that the average divorce can take a year or longer to conclude, it is essential to consider updating your will during this period to protect your wishes.
There is no legal concept of ‘common law marriage’ in England and Wales. Regardless of how long you have lived together, an unmarried partner has no automatic right to inherit from your estate if you die without a will.
This is one of the most common and serious gaps in estate planning. Many cohabiting couples assume their partner will automatically inherit their share of the family home or other assets, only to discover – tragically, after a death – that this is not the case.
If you are in a cohabiting relationship, making a will is essential to ensure your partner is provided for. You may also wish to consider a cohabitation agreement during your lifetime, which can set out your respective rights and intentions regarding property and finances.
A will allows you to:
A trust can be created within your will to hold assets for beneficiaries. Common reasons for including trusts in a will include:
Probate is the legal process of administering someone’s estate after their death. When there is a valid will, the executors named in the will apply for a ‘Grant of Probate’, which gives them the legal authority to deal with the estate.
If there is no will, the closest living relative applies for ‘Letters of Administration’ instead, and the estate is distributed according to the intestacy rules.
The probate process typically involves:
A clearly drafted will, with appropriate executors and clear instructions, can make the probate process significantly smoother and less stressful for your family.
Inheritance Tax is a tax on the estate of someone who has died. The current rules provide that:
Careful estate planning, including the use of trusts and lifetime gifts, can help reduce the Inheritance Tax payable on your estate. Professional advice is essential to ensure any planning is effective and does not create unintended consequences.
While a will deals with what happens after your death, a Lasting Power of Attorney (LPA) deals with what happens during your lifetime if you lose mental capacity.
There are two types of LPA:
An LPA can only be made while you have mental capacity. If you lose capacity without an LPA in place, your family may need to apply to the Court of Protection for a deputyship order – a process that is significantly more expensive, time-consuming, and restrictive than registering an LPA.
It is recommended that everyone considers putting LPAs in place alongside their will as part of comprehensive estate planning.
A will should not be a document you make once and forget. Life changes, and your will should change with it. You should review your will:
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to make a claim against an estate if they believe they have not received reasonable financial provision – whether under a will or the intestacy rules.
People who can bring a claim include:
Claims must generally be brought within six months of the Grant of Probate being issued. The court has wide discretion in deciding what provision is reasonable in the circumstances.
As a specialist family law firm, we understand how these claims interact with divorce settlements, family dynamics, and estate planning. We can advise on structuring your will to reduce the risk of a successful claim, or on bringing or defending a claim if one arises.
Yes. While your spouse may inherit part or all of your estate under the intestacy rules, a will ensures your wishes are followed precisely. It is particularly important if you have children from previous relationships, own a business, or want to make specific gifts to people other than your spouse.
Your will is not revoked by divorce, but any provisions benefiting your former spouse are treated as if they had died before you. The rest of your will remains valid. You should review and update your will as soon as possible after divorce to ensure it reflects your current wishes.
You can, but there are significant risks. A poorly drafted will may be invalid, ambiguous, or fail to achieve your intentions. The cost of professional advice is modest compared to the potential cost of disputes, tax inefficiencies, or unintended outcomes after your death.
Costs vary depending on complexity. A straightforward will for a single person will typically cost less than a will involving trusts, multiple properties, or complex family situations. We can provide a fixed fee quote once we understand your circumstances.
A will is a document that takes effect on your death and determines who inherits your estate. A trust is a legal arrangement where assets are held by trustees for the benefit of beneficiaries. Trusts can be created during your lifetime or within your will, and they offer various advantages including protecting assets for children, tax planning, and providing for vulnerable beneficiaries.
Yes. An LPA deals with decisions during your lifetime if you lose mental capacity. A will deals with what happens to your estate after your death. They serve different purposes and you should ideally have both in place.
Yes. You can change your will at any time by making a codicil (a formal amendment) or by making a new will that revokes all previous wills. We generally recommend making a new will rather than using multiple codicils, as this is clearer and reduces the risk of confusion.
If you die intestate and no relatives can be found who are entitled to inherit under the intestacy rules, your estate passes to the Crown as ‘bona vacantia’. The Treasury Solicitor becomes responsible for dealing with the estate.
At Heritage Park Family Law, we bring specialist family law expertise to will drafting and estate planning. This is particularly valuable because wills often intersect with family law matters:
We offer:
Contact us now on 01525 406030 or fill in our online form.
