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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 a 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?

All debts (including mortgages and other loans) must be repaid first, 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 their 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; and
  • a life interest in half of what is left (for example, the income or interest if the money is invested). The capital (the original amount) passes to their children when the surviving husband or wife dies.

The 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 will is being dealt with).

If there is a husband or wife 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 or wife
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 trustees until they reach 18.

If there is no husband or wife 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;

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

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);

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);

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 they 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







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.

Leaflet version: April 2019




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