4.4 Wills and Intestacy

A will is the primary tool for directing what happens to a client's estate after death. Where there is no valid will, the intestacy rules in England & Wales decide who inherits. CeMAP advisers must understand both, because life insurance, pensions, and trusts commonly interact with estate planning.

Requirements of a Valid Will

For a will to be valid in England & Wales it must satisfy the requirements in the Wills Act 1837 (as amended by subsequent legislation including the Administration of Justice Act 1982):

A witness (or their spouse/civil partner) cannot take a gift under the will — any such gift fails, although the will remains valid.

Codicils and Revocation

Codicil

A codicil is a supplemental document that amends an existing will. It must be executed with the same formality as the original will. Codicils are now less common because making a fresh will is generally cheaper and clearer.

Revocation

A will may be revoked by:

• Express revocation — a later will or codicil containing a revocation clause.
• Implied revocation — a later will dealing with the whole estate.
• Destruction — by the testator (or someone at their direction) with the intention of revoking.
• Marriage — automatically revokes any pre-marriage will, unless made in contemplation of that marriage.
• Divorce — does not revoke the will but treats the former spouse as having died on the date of dissolution for distribution purposes.

Intestacy Rules — England & Wales

The intestacy rules are set out in the Administration of Estates Act 1925 as amended by the Inheritance and Trustees' Powers Act 2014. Where there is no valid will, the estate is distributed in a fixed statutory order.

Statutory Legacy and Sharing

Where the deceased is survived by a spouse or civil partner and issue (children, grandchildren of a deceased child, etc.):

• The spouse/civil partner receives:
  • All personal chattels;
  • A statutory legacy (the figure is set by statutory instrument and updated periodically; candidates should confirm the latest figure); and
  • One half of the residue.
• The other half of the residue is divided equally between the issue.

Where survived by a spouse/civil partner but no issue, no parent, and no siblings of the whole blood, the spouse/civil partner takes the whole estate.

Where survived by a spouse/civil partner but no issue, the spouse takes personal chattels, the statutory legacy, and one half of the residue; the other half goes to parents (or, if none, to siblings of the whole blood and their issue).

Order of Distribution on Intestacy

Unmarried partners, step-children (unless adopted), and friends have no automatic right under intestacy — a major reason to encourage clients to make a will.

Inheritance Tax Allowances

Although inheritance tax is covered in detail elsewhere, the key allowances that interact with wills and intestacy are:

The combined NRB + RNRB for a couple can shield up to £1,000,000 of residence-wealth from inheritance tax on the second death.

Practical Advice Considerations

• Encourage clients to review their will at every life event: marriage, divorce, birth of children, death of a beneficiary, large inheritances, and house moves.
• Mirror wills for couples can leave everything to the survivor and then to chosen beneficiaries — but care is needed where there are children from a previous relationship.
• Property ownership interacts with wills: a tenant in common's share passes under the will; a joint tenant's share passes by survivorship regardless of the will.
• A will should be reviewed alongside pensions and life policies because the destination of those assets is often governed by nomination forms and scheme rules rather than the will.