IS THERE A WILL? YES
You may know the whereabouts of the will or be in possession of it.
If you know where it is, for example with a solicitor or bank, contact them by phone and ask for it to be delivered to you, or collected from them. You do not have to use the solicitor who held the will to complete probate. They are not allowed to withhold it.
IS THERE A WILL? NO
See ‘The Intestacy Rules’
IS THERE A WILL? NOT SURE
You will need to go through the deceased paperwork and documents. This will be a necessary step later in the process so if you do not know if there is a will you may want to do this step first. See ‘Setting up the file’.
If no will is in the deceased’s paperwork it may be lodged with a solicitor, banker or accountant. You may have details of likely persons to contact once you have set up your file.
Wills may also be lodged at the Principal Probate Registry for safe-keeping.
If there is a will lodged there is no fee to withdraw it.
Contact the Principal Probate Registry to find out if a will has been lodged. If one has been lodged, you can write in with a copy of the death certificate asking for it to be sent to you.
Principal Registry of the Family Division
The Principal Probate Registry
First Avenue House
42-49 High Holborn
Tel: 020 7947 6000/7022
WHAT’S IN A WILL?
A will is a legal declaration of how the deceased wishes their property (“estate”) to be distributed after their death.
It should include details of who the deceased wanted to deal with their estate after death (“Executors”). If it does not see ‘Who should administer the estate’.
It may also include their wishes regarding funeral arrangements. Therefore, it’s important to find out if there is a will as soon as possible.
YOU HAVE A WILL BUT IS IT VALID?
Enquiries should be made to ensure there are no later wills, for example with any solicitors, banks or accountants that the deceased dealt with. You can also call the Principal Probate Registry as detailed in the ‘Not Sure’ section.
Part of the responsibility of the executors appointed in a will is to prove that this is the last valid will.
WHAT MAKES A WILL VALID?
The Wills Act 1837 (as amended) lists the conditions for a valid will:
It is in writing
It is signed by the testator (the person making the will), or someone else in their presence at their direction
The testator's signature is made in the presence of at least two witnesses (note a witness or their spouse or civil partner cannot be a beneficiary of the will unless there are two other witnesses who are not beneficiaries)
Each witness signs the will and either signs or acknowledges their signature in the presence of the testator
The testator must be 18 (unless on active service with the armed forces or a mariner)
The will should also be dated at the time of execution.
It is normal for wills to include an attestation clause.
This clause demonstrates that the formalities regarding witness have been complied with and typically would read:
'signed by the testator in our joint presence and then by us in his....'
This should be written next to the testator's signature and immediately above the witness' signatures. This clause will support the assumption that the will has been duly executed.
It must be clear that the testator intended the will to be effective. This is normally demonstrated by their signature at the end of the will indicating that they intended everything before the signature to be effective.
Wills made outside of England & Wales are acceptable under English Law if they are in accordance with the law of the state in which they were made.
If the deceased marries or enters a civil partnership after having made a will, unless this act is specifically referred to in the will, the will is revoked and therefore invalid.
If the deceased divorced, the previous spouse or civil partner revokes their appointment as executor.
UNCERTAIN ABOUT A WILL’S VALIDITY?
Contact us for advice, you may need to take legal advice, particularly if the will is likely to be challenged. See ‘Contentious Probate’.
If there is any dispute over the validity of a will the process becomes what is known as Contentious Probate. If this is likely to occur, you will need to involve a solicitor immediately before you start the process.
If the will may be contested or challenged or have any contentious (disputed) matters eg an expected beneficiary being excluded, you should take legal advice prior to starting the probate process.
Contact us if you have concerns and we can direct you to a local legal advisor.