What Do I Need to Include in My Will?
7 minute read
The difference between a basic will and a thorough one can be significant. Getting the details right is what turns a simple will into a reliable one.
Making a will is one of the most important legal steps you can take, but sitting down to actually do it raises a practical question that many people find harder to answer than they expected. What, exactly, does a will need to cover?
The answer is more involved than most people initially assume. A will is not simply a list of who gets what. It needs to account for every significant asset you own, reflect how those assets are actually held, and deal with the various legal and practical complications that can affect whether your wishes can be carried out in the way you intend.
This guide works through the main areas you will need to think about before instructing a will drafter. Taking the time to understand them now will make the drafting process smoother and significantly reduce the risk that your Will may fail to do what you expect it to do.
Table of Contents
Start with a Comprehensive List of Your Assets
The starting point for any will is a clear picture of what you actually own. This sounds straightforward, but in practice, many people discover gaps or complications when they sit down to think about it carefully. The more complete and accurate your asset list, the better placed your will drafter will be to ensure that everything is properly covered.
Your assets will typically fall into several broad categories.
- Money and financial assets, including bank and building society accounts, savings accounts, cash ISAs, stocks and shares ISAs, investment accounts, bonds, and pension funds. Note that pension funds are usually excluded from your estate for will purposes (we will come back to this), but it is still worth listing them so your will drafter can flag any issues.
- Property, including your home, any second or holiday properties, buy-to-let properties, and any land you own. As we will explain below, the way in which property is owned makes a significant difference to what your will can and cannot do with it.
- Personal possessions, including vehicles, jewellery, artwork, antiques, collectables, and any other items of value. If particular items are important to you, or if you want specific items to go to specific people, they should be identified clearly.
- Business interests, including shares in private companies, partnership interests, sole trader assets, and any other interests arising from your professional or commercial activities.
- Digital assets, including online accounts, cryptocurrencies, websites, domain names, digital photo libraries, and any other assets that exist primarily in digital form.
- Overseas assets, including any property, bank accounts, investments, or other assets located outside England and Wales.
- Policies and trusts, including life insurance policies, critical illness policies, and any policies or arrangements already written in trust.
The purpose of compiling this list is not simply to give your will drafter a schedule of your wealth. It is to make sure that nothing is inadvertently left out, and that the specific legal issues affecting each type of asset are properly considered and addressed.
Not sure whether all your assets are covered? Our will-drafting specialists will guide you through a thorough review before drafting begins.
Solely Owned vs Jointly Owned Assets: Why the Distinction Matters
Once you have identified your assets, the next essential step is to determine which of them you own solely and which you own jointly with another person. This distinction is fundamental, because your will can only deal directly with assets that belong to you alone. Jointly owned assets are governed by different legal rules, and those rules will override whatever your will says if they are not addressed.
A solely owned asset is one in which you are the sole legal owner. If you own a car, a savings account, or an investment portfolio in your name alone, that asset forms part of your estate and can be left to whoever you choose in your will.
A jointly owned asset is one where you share legal ownership with one or more other people. This is most common with the family home, where couples typically own the property together. It also arises with joint bank accounts and jointly held investments.
The critical point is this: depending on how the joint ownership is structured, the other owner or owners may automatically inherit your share on your death, regardless of what your will says. Your will may simply have no power to override that outcome.
Joint Tenants vs Tenants in Common: A Crucial Distinction
When two or more people own property together in England and Wales, they do so in one of two ways – as joint tenants or as tenants in common. Understanding the difference between these two forms of ownership is one of the most important things a will-maker can do.
Joint Tenancy
Under a joint tenancy, all owners hold the property together as a single, undivided whole. Neither owner has a distinct, separate share that they can identify as their own. The defining legal feature of a joint tenancy is the right of survivorship, which means that when one joint tenant dies, their interest in the property passes automatically to the surviving joint tenant or tenants. This happens by operation of law, entirely outside your will.
For many married couples, this is exactly what they want, and joint tenancy suits them well. But if your wishes are different, if you want your share of the property to pass to your children, or to a beneficiary other than the co-owner, then a joint tenancy will frustrate that intention unless you take action before your death.
Tenants in Common
Under a tenancy in common, each owner holds a distinct, identifiable share of the property. That share might be equal (fifty-fifty) or unequal, depending on how the ownership was set up. The key difference from a joint tenancy is the absence of a right of survivorship. When a tenant in common dies, their share does not automatically pass to the other tenant in common. Instead, it forms part of their estate and can be dealt with under their will.
If you own property as tenants in common, you can leave your share to whoever you choose. This makes it a much more flexible arrangement for people who want to direct their share of property to someone other than the co-owner, including in blended family situations or where there are children from a previous relationship.
Severing a Joint Tenancy
If you currently own property as joint tenants but you want to leave your share to someone other than the co-owner, you will first need to sever the joint tenancy. Severing a joint tenancy converts the ownership from joint tenancy to tenancy in common, giving each owner a distinct share that they can then deal with under their will.
Severance is a legal process that must be handled correctly. It involves serving a formal notice of severance on the other owner and, ideally, registering the change at HM Land Registry. If it is not done properly, or not done at all, your will cannot achieve what you intend it to achieve in relation to that property.
Do you know whether you own your home as joint tenants or tenants in common? The answer could determine whether your will achieves what you intend. We can help you check.
Business Interests: Review Before You Draft
If you have an interest in a business, whether as a sole trader, a partner in a partnership, or a shareholder in a private limited company, your will needs to address those interests carefully. Business assets are among the most complex and consequential matters a will can address, and they require careful consideration before drafting begins.
The most important first step is to review any existing agreements that govern what happens to your business interest on your death. If you are a shareholder in a private company, there may be a shareholders’ agreement in place that already dictates what must happen to your shares when you die. It may require your shares to be offered to the remaining shareholders at a set price, or it may restrict who can transfer your shares. If your will makes a gift of shares that conflicts with the shareholders’ agreement, the agreement will typically take precedence.
Similarly, if you are in a partnership, the partnership agreement will almost certainly contain provisions about what happens on the death of a partner. These provisions may affect the value of your interest in the business, the rights of your estate, and whether any continuing interest is even available to pass on through your will.
The point is that you cannot draft effective provisions about business interests in a will without first understanding what external agreements or restrictions already apply. Your will drafter should ask you about this, and you should have the relevant documents to hand.
Business interests may also qualify for Business Relief from inheritance tax, which can significantly reduce or eliminate the tax payable on those assets. This is another reason why business assets deserve specific professional attention during the will-drafting process.
Digital Assets: Easy to Forget, Important to Include
Digital assets are an increasingly significant part of many people’s estates and among the most commonly overlooked. The term covers a wide range of things: online banking and investment accounts, cryptocurrency holdings, PayPal balances, website domain names, self-hosted websites or blogs with commercial value, digital photo libraries, e-book or digital media libraries, and social media accounts.
Some digital assets have real financial value. A cryptocurrency wallet could be worth a substantial sum. A commercial website or blog might generate ongoing income. Domain names can sometimes be sold for significant amounts. If these assets are not identified in your will, or if your executors do not know they exist or how to access them, they may simply be lost.
Even digital assets that have no direct financial value may matter greatly to your family. A lifetime of photographs stored in a cloud account, for example, could be irretrievable if the access credentials are not recorded and securely passed on.
There is also the practical question of access. Unlike a bank account or a property, digital assets often cannot be accessed without login credentials or private keys. Your will can express who you want to benefit from a digital asset, but if your executor cannot actually access it, that wish cannot be carried out.
It is worth making a secure record of your digital assets and the information needed to access them, and ensuring that your executors know where to find it. Your will drafter can advise on how to do this in a way that is both effective and secure.
Have You Thought About Your Digital Assets?”
Many estates lose assets such as photos or documents, and even cryptocurrency, simply because no proper record was kept
Overseas Assets: A Will in England May Not Be Enough
If you own assets outside England and Wales, whether a holiday apartment, a bank account, an investment portfolio, or any other interest, you need to be aware that your English Will may not be sufficient to deal with them.
Different countries have different laws governing succession, and many jurisdictions require a separate local will to deal with assets situated in their territory. Some countries apply forced heirship rules that restrict your freedom to leave assets as you choose, regardless of what your Will says. In others, your Will may be recognised, but the probate process will still need to be conducted locally, which can be time-consuming and expensive without proper preparation.
This does not necessarily mean you need to rewrite your entire estate plan. It does mean that overseas assets require specific professional attention, and that your English Will needs to be drafted with those assets in mind so that it does not inadvertently revoke or conflict with any foreign will or arrangement you may have in place.
At the very least, your will drafter needs to know about all overseas assets so that the English will can be structured appropriately and so that you can be directed to useful local advice where necessary.
Life Policies and Trust Arrangements: Check the Small Print
Life insurance policies are a common and valuable asset, but they interact with your will in a way that is frequently misunderstood. Whether a life policy falls into your estate or passes outside it depends entirely on how the policy is set up, with significant implications for who benefits and for inheritance tax.
Policies Written in Trust
Many life insurance policies are written in trust. This means that the policy proceeds are held on trust for named beneficiaries and do not form part of your estate on your death. The payout goes directly to the named beneficiaries, bypassing both your will and the probate process entirely. This is generally a good thing, as it means the money reaches your loved ones quickly and without any inheritance tax liability on those funds.
However, it also means that your will has no control over who receives the policy proceeds. The beneficiaries are determined by the trust deed, not by your will. If the trust deed names beneficiaries who are no longer the people you want to benefit, you will need to update the trust rather than simply updating your will.
Reviewing Trust Deeds and Nomination Forms
If you have a life insurance policy, a death-in-service benefit, or a pension with a nominated beneficiary, it is important to locate the relevant trust deed or nomination form and review who is named. This is particularly important if your personal circumstances have changed since the policy was set up, for example, if you have divorced, remarried, had children, or if a named beneficiary has died.
Some policies are not written in trust, and the proceeds do fall into your estate. In those cases, your will determines who receives the money, and it is essential to ensure that the will and the policy align with your intentions.
Your will drafter should ask you about any life policies, pensions, and existing trust arrangements as part of the initial fact-finding process. If they do not, you should raise it yourself, because the consequences of overlooking these issues can be significant.
Why Clarity on All of This Matters So Much
A will that fails to account for how assets are actually held, or that overlooks significant categories of assets entirely, may distribute your estate in a way that is very different from what you intended or expected.
Consider a straightforward example. A person makes a will leaving their entire estate equally to their two children. They own their home jointly with their spouse as joint tenants. They have a life insurance policy written in trust naming only one of the children as beneficiary. And they have a cryptocurrency wallet that neither child knows about.
On their death, the house passes automatically to the surviving spouse by the right of survivorship, not to the children under the will at all. The life insurance proceeds go directly to one child, outside the will. The cryptocurrency is lost because no access credentials were recorded. The will, in practice, only deals with a fraction of the estate, and it does so in a way that treats the two children very unequally, despite the testator’s clear intention that they should benefit equally.
This is not an extreme or unusual scenario. Variations of it happen regularly in estates where the will was made without a thorough review of all the assets and how they are held.
The solution is not complicated. It is a matter of taking the time, before drafting begins, to build a complete and accurate picture of your assets, how each one is owned, and what legal rules apply to it. A professionally drafted will, based on that complete picture, can then be structured to give effect to your actual intentions rather than a partial or inaccurate version of them.
We Are Here to Help
Making a will that genuinely does what you want it to do requires a clear understanding of what you own and how you own it. That is something our team is experienced in helping people work through.
We will guide you through a thorough fact-finding process before any drafting begins, ask the questions that matter, and make sure that every significant asset in your estate is properly accounted for. The result is a will that you can have genuine confidence in.
If you would like to get started or have questions about any of the issues covered in this guide, please do get in touch. You can use our online contact form or call us.
Frequently Asked Questions
Does my will cover everything I own?
Not necessarily. Your will only deals with assets that form part of your estate. Assets held as joint tenants pass automatically to the surviving owner and are not covered by your will. Assets held in trust, and many pension funds and life insurance policies, also fall outside your estate. A thorough review of your assets before drafting is essential.
What is the difference between joint tenants and tenants in common?
Joint tenants hold property together without distinct shares, and on the death of one owner, the property passes automatically to the survivor under the right of survivorship. Tenants in common each hold a distinct share that can be left under their will. If you want your share of a jointly owned property to go to someone other than the co-owner, you may need to sever the joint tenancy before your will can achieve that outcome.
Can I include my digital assets in my will?
Yes, and it is important to do so if you have digital assets of financial value. You should also ensure that your executors have access to the information they need to locate and access those assets. Cryptocurrency, in particular, can be permanently lost if access credentials are not securely recorded and passed on.
What happens to my life insurance policy when I die?
That depends on how the policy is set up. If it is written in trust, the proceeds go directly to the named beneficiaries and fall outside your estate entirely. If it is not written in trust, the proceeds form part of your estate and are dealt with under your will. It is important to check the current status of any life policies and review the nominated beneficiaries before finalising your will.
Do I need a separate will for overseas assets?
Possibly, yes. Many countries require a local will or probate process to deal with assets situated in their territory. Your English Will may not be sufficient, and some countries have forced heirship laws that override your wishes regardless. You should inform your will drafter of any overseas assets so that your English will is structured appropriately and you can be directed to local advice where needed.
What happens to my business interests when I die?
This depends on your business’s structure and any agreements in place. Shareholders’ agreements and partnership agreements often contain provisions that govern what happens to a business interest on death, and these may restrict what your will can do. It is essential to review those agreements before drafting a will that deals with business assets.
Disclaimer
This article is intended as general information only and does not constitute legal advice. The information refers to the law of England and Wales. Tax thresholds and legal rules are correct at the time of writing but are subject to change. We recommend that you seek professional advice regarding your own circumstances.
Bio
This article was written by Stephen Rhodes. Stephen was called to the Bar of England and Wales in 1999 and brings over 25 years of in-house experience working with solicitor firms across the Manchester area, with a specialism in Wills and Probate. He now focuses exclusively on will drafting, helping his clients ensure their loved ones are taken care of exactly as they would wish.