Many individuals don’t think about making arrangements for a Last Will and Testament before reaching their senior years. While most younger individuals tend to set up their Will when they have children, others do so once they accumulate money and other assets.
Whatever the reason may be, ensuring your will is valid and true to your final wishes is an essential part of life. Let’s start with some basics, like what a Will is.
What is a Last Will and Testament?
In a nutshell, a Last Will and Testament is a legal document that outlines a person’s wishes for the distribution of their assets after they die.
This is also crucial when the deceased leaves dependents behind. These dependents can be anyone who relied on the person in question physically or financially.
A Will must state who they would like appointed as legal guardians should they be survived by children under 18 without another parent. This will all be communicated by lawyers and the executor of the Will.
What Is the Executor of a Will Responsible For?
When setting up your Last Will and Testament you will name an executor of your Will. The executor is responsible for managing the estate of the deceased and carrying out any and all instructions set out in the Will.
The executor’s responsibilities may include:
- Applying for probate: This involves submitting the Will to the probate court and obtaining a grant of probate, which gives the executor legal authority to manage the deceased person’s assets.
- Notifying beneficiaries: They will be responsible for identifying the beneficiaries named in the Will and notifying them of their entitlements as stipulated in the document.
- Distributing assets: They will also organise and manage the distribution of the deceased person’s assets to the beneficiaries named in the Will.
- Paying debts and taxes: The executor is named as responsible for paying any outstanding debts and taxes owed by the deceased person, using funds from the estate if necessary.
- Managing the estate: The executor may be responsible for managing the deceased person’s property and assets until they can be distributed to the beneficiaries.
When taking the above into consideration, it is important to choose an executor who is trustworthy and capable of managing the estate in accordance with the instructions set out in the Will. It is also advisable to discuss the role of executor with the person you are considering appointing to ensure they are willing to take on the weight of the responsibility.
Are a Will and Last Testament the Same Thing?
These are essentially the same thing, and the terms are often used interchangeably. No need to panic if you have set up a Last Testament but not a Will.
Generally, the term “Will” is used more commonly in conversation while “Last Testament” is the formal legal term for the same legal document that outlines a person’s wishes concerning what they have left behind and how it will be distributed.
How Many Witness Signatures Do You Need to Validate a Will?
In the UK, a Will needs to be signed by at least two witnesses to be considered legal and valid. Both witnesses must be present and “witnessing” when the testator (the person setting up the Will) signs their own Will. The witnesses will then sign themselves.
Having two witnesses sign a Will safeguards against fraudulent activity to ensure the document accurately reflects the testator’s final wishes. These legal requirements when creating a Will ensure it is legally valid so that it can be honoured after the testator’s death.
Can a Solicitor or Notary Witness a Will?
Yes, as long as the individual is not named as a beneficiary in the Will they are signing as a witness.
Can a Stranger to The Testator Witness Their Will?
Yes, if they meet the requirements listed in the next point, the witnesses of the Will are free to be chosen as the testator sees fit.
Who Can Witness the Signing of a Will?
Almost anyone can act as a witness for the signing of a Will. There are only three considerations a potential witness needs to meet to be a valid Witness:
- They must be a legal adult over the age of 18 (in Scotland the legal age is 16) and must have the mental capacity to understand what they are witnessing.
- Independent and impartial – Witnesses must have no personal interest in the contents of the Will. They cannot be named as beneficiaries in the Will they are signing as a witness.
- Present when the Will is signed – Both witnesses must be physically present to see the testator sign the Will and must also sign the document in the presence of the testator.
While a testator is free to choose a stranger as a witness, it is advised to choose witnesses that are trustworthy in that you can count on them to confirm the validity of the Will once you have passed.
The ideal witnesses would be a younger friend or neighbour, who can be contacted if there is any question about the execution when you have passed. A professional such as a notary, solicitor or doctor is also a good choice, but be aware that a fee may be charged.
Ensuring a Will is valid is basically ensuring all of the measures mentioned above were taken by the testator and the witnesses. The rest is in the hands of the executor and the beneficiaries.
What Is Required to Determine if a Will is Valid?
In the UK, there are no specific documents required to validate a Will. The executor and beneficiaries may need to present identification.
However, there are legal requirements that must be met for a Will to be considered valid:
- The Will must be in writing: A will must be in writing, either typed or handwritten, and signed by the testator. A handwritten Will or a “holographic Will” is valid as long as it meets all the other requirements discussed in this article Additionally he the handwritten will must be written entirely by the testator (in their handwriting) if it is to be seen as valid. It must also include the date and signature of the testator.
If the Will is written in a different language, you may need to have a translation notarised first before executor duties can be completed.
- The testator must have the testamentary capacity to make a Will: The testator must have the mental capacity to understand the nature of the document they are signing and the implications of its contents. They need to have created and signed the document when considered of sound mind.
- The will must be signed by the testator: The testator must sign the Will in the presence of two witnesses, who must also sign the document.
- The witnesses must be independent and not beneficiaries: The witnesses benefit in any way from the Will’s contents. They must be present when the testator signs the Will and must also sign the document in the presence of the testator.
- The Will must reflect the true intentions of the testator: The Will must accurately reflect the testator’s wishes regarding the distribution of their assets.
In conclusion, if you have created a Will that meets all the stipulations above, your Last Will and Testament is valid. At Notary.co.uk, we can act as witnesses to your will to ensure it is executed correctly. Contact us today to get your will witnessed and/or notarised.