Wills & Probate

For parents, making a will is about more than deciding who receives money or property. It can also be an opportunity to set out who you would want to care for your children if you die while they are still under 18.

Choosing a guardian is therefore one of the most important decisions parents can make when preparing a will. The right person will need to be able to provide a safe, stable and supportive home, while also understanding your children's individual needs.

What is a testamentary guardian?

A testamentary guardian is someone appointed by a parent in their will to take responsibility for a child after the parent's death. In England and Wales, testamentary guardianship can give the appointed person parental responsibility where the legal conditions are met. Your will should clearly identify the person you want to act as guardian. It is also sensible to discuss the decision with them before making or updating your will.

What should you consider when choosing a guardian?

There is no single answer that works for every family. You might consider:

Relationship with your children: A close family member or trusted friend may already understand your children's personalities and routines.

Age and health: The guardian should realistically be able to care for your children throughout their childhood.

Location: Consider whether moving your children would mean changing schools, leaving friends or moving away from other family members.

Values and parenting approach: Think about whether the proposed guardian shares important values and would respect the way you want your children raised.

Financial circumstances: Guardians do not necessarily have to use their own money to raise the children. However, the financial arrangements surrounding the children should be considered as part of the wider estate plan.

Can you name more than one guardian?

Parents should take care when deciding whether to appoint one person or more than one person. For example, appointing a couple may seem straightforward, but circumstances can change if their relationship breaks down or one person dies.

It may also be sensible to name replacement guardians in case your first choice cannot or does not wish to act.

What if the other parent survives?

Appointing a guardian in your will does not simply override another person who already has parental responsibility. The legal position depends on who has parental responsibility and the circumstances following the parent's death.

This is one reason why parents with complicated family circumstances should consider taking legal advice when preparing their wills.

Think beyond the appointment

A good estate plan can also consider where money for the children should come from, who should manage that money and when children should receive assets.

Your will can therefore form part of a wider plan designed to protect your children's financial and personal welfare.

Conclusion

Choosing guardians for your children is a decision that deserves careful thought. Consider the person's relationship with your children, their ability to provide long-term care and what would happen if your first choice could not act.

Your will should clearly record your wishes and be reviewed after major changes in your family circumstances. GOV.UK recommends considering who should look after children under 18 when making a will.

Many people assume that a pension automatically forms part of their estate and passes according to their will. That is not necessarily how pension death benefits work.

The treatment of a pension depends on the type of pension, the scheme rules, your age and circumstances at death, and the decisions made by the pension provider or scheme trustees.

Who receives your pension?

For many private pensions, you can nominate someone to receive death benefits. GOV.UK explains that the person who died will usually have nominated a beneficiary with their pension provider. However, the provider may sometimes pay someone else depending on the scheme rules and circumstances.

This means your pension beneficiary nomination should be reviewed alongside your will rather than treated as an afterthought.

Does your pension follow your will?

Not necessarily.

Your will deals with assets that form part of your estate, whereas many pension arrangements operate under their own scheme rules. Consequently, simply naming someone in your will does not necessarily mean that person will receive your pension death benefits.

Keeping beneficiary nominations up to date can therefore be an important part of estate planning.

What about tax?

The tax treatment of inherited pension benefits can depend on several factors.

There is also an important upcoming change.

From 6 April 2027, most unused pension funds and pension death benefits will be brought within the value of a person's estate for Inheritance Tax purposes. Finance Act 2026 has legislated for these changes.There are exceptions. For example, death-in-service benefits payable from registered pension schemes are excluded from these Inheritance Tax changes.

The rules surrounding income tax on inherited pension benefits are separate and can also depend on the circumstances.

Why should you review your pension?

Estate planning is not simply about writing a will.

You should consider:

Your current pension provider

Your nominated beneficiaries

Whether your beneficiaries' circumstances have changed

Your wider estate

Life insurance

Property ownership

Potential Inheritance Tax

The upcoming pension tax changes

Marriage, divorce, separation, the birth of children and the death of a beneficiary can all be reasons to review your arrangements.

What should executors know?

If you die with pension benefits, your personal representatives may need to identify pension arrangements and provide information when dealing with the estate.

From April 2027, personal representatives will have responsibilities relating to reporting and paying Inheritance Tax on pension benefits that fall within the new rules. Conclusion

Your pension can be an important part of your estate planning, but it should not be considered in isolation. Beneficiary nominations, pension scheme rules, income tax and the upcoming Inheritance Tax reforms can all affect what happens after death.

Reviewing your pension arrangements alongside your will can help reduce uncertainty for your family.

Life insurance can provide valuable financial protection for your family after your death. However, simply having a policy is not the same as having an effective estate plan.

The way a life insurance policy is owned, who benefits from it and whether it is held in trust can affect how the proceeds are treated.

Why include life insurance in estate planning?

Life insurance can provide money to help dependants deal with financial commitments following a death.

For example, a payout might help with:

Mortgage or housing costs

Household expenses

Children's education

Funeral expenses

Other financial commitments

The policy can therefore form an important part of a family's financial planning.

Does life insurance form part of your estate?

The answer depends on the policy and how it is structured.

HMRC guidance explains that where the deceased is both the life assured and policyholder, the proceeds of the policy can form part of their estate for Inheritance Tax purposes. However, life policies can also be placed in trust. HMRC recognises that life policies held in trust have different considerations and that the trust documents need to be examined to determine the relevant beneficial interests.

What does putting life insurance in trust mean?

A trust is a legal arrangement under which assets are managed by trustees for beneficiaries.

A life insurance policy placed into an appropriate trust may allow the policy proceeds to be dealt with outside the deceased's free estate, depending on the circumstances and trust structure.

However, trusts can have complicated legal and tax consequences. Setting up a trust should therefore not be treated as a simple administrative exercise.

Should your will mention your life insurance?

Your will and life insurance policy should be considered together, but the will does not necessarily control the payment of policy proceeds.

You should check:

Who owns the policy

Who is insured

Who the beneficiaries are

Whether the policy is written in trust

Who the trustees are

Whether circumstances have changed

Review your policy regularly

Estate planning needs to change as life changes.

Marriage, divorce, new children, changes in financial circumstances and changes to your wider estate can all be reasons to review life insurance arrangements.

It is also important to keep policy documents somewhere your family or personal representatives can locate them.

Conclusion

Life insurance can be a useful part of estate planning, particularly where family members depend on your income or where your estate has significant liabilities.

However, ownership, beneficiary arrangements and trusts can affect the tax and legal position. Professional advice can help ensure that the policy works alongside your wider estate plan.

This article provides general information and should not be relied upon as individual legal or tax advice.

Your circumstances can change considerably after you make a will. You may have children, grandchildren, marry, divorce, fall out with someone or simply change your mind about who should inherit.

Fortunately, a will can generally be changed while you have the required capacity and follow the appropriate legal formalities.

Can you simply edit your existing will?

No.

Once a will has been signed and witnessed, you should not simply cross out a beneficiary or write new instructions on the document.

GOV.UK explains that changes to a signed and witnessed will should be made through an official alteration called a codicil, which must be signed and witnessed in the required way.

When should you make a new will?

A codicil can be appropriate for a relatively straightforward change.

However, if you want to make significant changes to several beneficiaries or substantially change your estate plan, making a new will may be more appropriate.

A new will should normally state that previous wills and codicils are revoked.What if you have married or divorced?

Major life changes are an important reason to review your will.

GOV.UK specifically recommends reviewing a will every five years and following significant changes such as marriage, divorce or separation, having a child or the death of an executor.

Marriage can have particularly significant consequences because, in general, marriage cancels an earlier will unless it was made in contemplation of that marriage.

Can someone challenge your decision?

Changing a beneficiary does not automatically make a will invalid.

However, disputes can arise where family members believe a person lacked testamentary capacity, was subjected to undue influence or did not properly understand the document.

This is particularly important where a person makes substantial changes late in life or excludes someone who would otherwise expect to inherit.

What happens after someone dies?

There is also a separate process for changing the distribution of an estate after death.

GOV.UK explains that beneficiaries can sometimes agree to a variation of a deceased person's will, provided the relevant requirements are satisfied. Changes generally need to be completed within two years of death for certain tax purposes. This is different from changing your own will while you are alive.

Conclusion

If you want to change beneficiaries in your will, do not simply amend the original document by hand.

Depending on the extent of the change, you may need a properly executed codicil or a completely new will. Reviewing your will regularly can help ensure that it continues to reflect your wishes.

Being named as an executor in a will does not simply mean handing money and property to beneficiaries.

An executor has an important legal role in administering the deceased person's estate. There can be several steps to complete before assets can safely be distributed.

Find the will

The first step is usually to locate the deceased's original will and confirm who has been appointed as executor.

GOV.UK states that an executor named in a will can apply for probate and that the original will is normally required for the application.

Identify the estate's assets and debts

The executor needs to establish what the deceased owned and what they owed.

This may include:

Bank accounts

Investments

Property

Vehicles

Personal possessions

Pensions and death benefits

Life insurance

Loans

Credit cards

Mortgages

Household bills

Tax liabilities

The estate may be more complicated than it initially appears.

Establish whether probate is required

Probate gives the personal representative the legal authority to deal with the deceased's property, money and possessions in appropriate cases. The executor may need to apply for a Grant of Probate before organisations will release certain assets.

Deal with Inheritance Tax

Before applying for probate, the estate generally needs to be valued for Inheritance Tax purposes.

GOV.UK explains that some estates require full details to be reported to HMRC using form IHT400, while others may qualify as excepted estates. Where Inheritance Tax is due, payment arrangements may need to be addressed before probate is granted.

Pay debts and expenses

An executor should not normally distribute the estate simply because beneficiaries are waiting for their inheritance.

Outstanding liabilities need to be identified and dealt with. Funeral expenses, debts, taxes and administration costs can all affect what is ultimately available to beneficiaries.

Distribute the estate

Once the estate has been properly administered, the executor can distribute assets according to the will.

The executor should keep appropriate records showing what assets were collected, what liabilities were paid and what beneficiaries received.

What if there is a dispute?

If there is a dispute about the will, debts, beneficiaries or the administration of the estate, distribution may need to be delayed until the issue is resolved.

An executor should not ignore a potential claim simply because the will appears straightforward.

Conclusion

An executor's job involves much more than obtaining probate and handing out inheritance.

They may need to identify assets, value the estate, deal with tax, settle debts, obtain probate, keep records and distribute the remaining estate correctly.

Property ownership can become particularly important when someone dies.

A common misconception is that a person's share of jointly owned property will always pass according to their will. That depends on how the property is owned.

In England and Wales, property can generally be held as joint tenants or tenants in common.

What happens if you are joint tenants?

When property is owned as joint tenants, the owners have equal rights to the whole property.

GOV.UK explains that when one joint tenant dies, the property automatically passes to the surviving owner or owners. A joint tenant therefore cannot normally use their will to leave their interest in the property to someone else.This is known as the right of survivorship.

What happens if you are tenants in common?

Tenants in common own separate shares in the property.

Those shares can potentially pass under the owner's will rather than automatically passing to the surviving owner.

For example, two people might own a property as tenants in common in equal shares. If one dies, their share may pass to the beneficiary named in their will, subject to the terms of the will and the wider legal circumstances.

Why does the distinction matter?

The difference can have major consequences for estate planning.

A person might believe they are leaving their home to their children through their will, only to discover that the property is jointly owned in a way that causes the surviving owner to receive it automatically.

This is why property ownership should be reviewed alongside a will.

Can ownership be changed?

In some circumstances, joint owners may be able to change how they hold a property.

However, changing the ownership structure can have legal, financial and tax consequences.

It is therefore important to understand the existing title and beneficial ownership before making changes.

What happens during probate?

The treatment of jointly owned property can affect the estate's value and the assets that personal representatives need to administer.

If the property passes automatically to a surviving joint owner, it may not form part of the estate in the same way as an asset that passes under the will. However, property ownership can have wider Inheritance Tax implications, so the overall circumstances need to be considered.

Conclusion

If you own property jointly, do not assume that your will alone determines what happens to your share when you die.

Understanding whether you are joint tenants or tenants in common is an important part of estate planning.

GOV.UK recommends seeking legal advice where property ownership arrangements are complicated.

Making a will is a personal legal act. A family member cannot simply write or sign a will on behalf of another person because they believe it reflects what that person would have wanted.

The person's capacity to make a will is therefore extremely important.

What is testamentary capacity?

Testamentary capacity refers to the mental ability required to make a valid will.

HMRC guidance referring to the established legal test states that the person making the will must understand that the document will operate after their death, understand the broad effect of what they are doing, have an understanding of the property being disposed of and understand the people who may have claims on their estate.

Does an illness automatically mean someone lacks capacity?

No.

A diagnosis or physical illness does not automatically mean that a person lacks testamentary capacity.

The important question is whether the person has the necessary understanding at the relevant time.

GOV.UK also explains that someone who has lost mental capacity to manage their finances may still have the ability to make a will.

What if someone cannot make a will themselves?

If a person cannot make or change a will themselves, an application can be made to the Court of Protection for a statutory will.

The Court of Protection can authorise a will or changes to an existing will where the person is unable to make the decision themselves.

The application process can involve evidence about the person's circumstances, their existing will, their assets and the proposed arrangements.

Why can capacity become a legal issue?

Capacity disputes can arise after someone's death.

For example, family members might question a will where:

It was made shortly before death

The person was seriously unwell

The will made significant changes

A beneficiary became substantially better off

Someone else was heavily involved in preparing the document

These circumstances do not automatically make a will invalid, but they may require careful examination.

What can help reduce future disputes?

Where there may be concerns about capacity, proper will preparation and evidence can be particularly important.

A professional will-making process can help establish what the person understood and whether the instructions genuinely came from them.

Conclusion

You cannot simply make a normal will for another adult because they are elderly, ill or unable to manage their affairs.

If someone lacks the capacity to make a will, the appropriate route may involve the Court of Protection and a statutory will.

Dealing with probate after someone dies can feel overwhelming, particularly when family members are also dealing with grief.

One way to make the process more efficient is to gather as much relevant information as possible before meeting a probate solicitor.

The exact documents required will depend on the estate, but certain information is commonly important.

The original will

If the deceased left a will, the original document is particularly important.

GOV.UK states that an executor applying for probate normally needs to provide the original will and that the Probate Registry keeps it as a public record after the grant is issued. You should also provide any codicils or other relevant documents.

Death certificate

A death certificate will normally be needed as part of dealing with the deceased's affairs.

If the death occurred outside England and Wales, or an interim certificate has been issued by a coroner, specific requirements may apply to the probate application.

Bank and savings information

Try to collect details of:

Current accounts

Savings accounts

ISAs

Investment accounts

Premium bonds

Other financial assets

Statements can help establish balances and transactions around the date of death.

Property information

For property, gather documents showing:

The address

Ownership details

Mortgage information

Property valuation

Any rental arrangements

Relevant insurance

Where a property is jointly owned, it is particularly important to establish whether it was held as joint tenants or tenants in common.

Pension and life insurance information

Locate pension statements and beneficiary nomination information.

Also provide details of life insurance policies, including whether a policy is held in trust.

This is increasingly important because most unused pension funds and pension death benefits are due to come within the Inheritance Tax regime from 6 April 2027.

Debts and liabilities

A probate solicitor will also need information about liabilities.

This can include:

Mortgages

Credit cards

Personal loans

Utility bills

Tax liabilities

Care costs

Other outstanding debts

Gifts made before death

Information about significant gifts made during the deceased's lifetime can also be relevant when calculating the estate for Inheritance Tax purposes.

GOV.UK explains that certain estates may require details of gifts and other information to be reported to HMRC.

Make a simple estate checklist

Before your first meeting, creating a simple list of assets, debts, policies and documents can save considerable time.

Do not worry if you cannot find everything. Tell the solicitor what you know and identify anything that is missing.

Conclusion

Preparing for a probate solicitor does not mean you need to have every aspect of the estate worked out before the first appointment.

The most useful starting point is to gather the original will, death certificate, property information, bank and investment details, pension and insurance documents, debts and information about significant gifts.

The more complete the information, the easier it can be to identify what needs to be dealt with during the administration of the estate.