Skip links

Wills, Trusts, and Probate

Wills solicitors serving Oxfordshire and area

Your local wills solicitors serving Oxfordshire and area

Our professional wills solicitors have experience on providing a full range of private client services ranging from wills, probate, and lasting powers of attorney, to tax implications in family and employment matters.

The covid pandemic has created uncertain times and there is nothing wrong in wanting to ensure your loved ones are protected. Our wills solicitors can assist with your concerns by providing legal advice and guidance as to how to manage various different aspects of wills, trusts and probate.

The are many issues that can arise when preparing a will from the drafting, to amending an existing will, urgently preparing a deathbed will, or even dealing with complex terms in the will surrounding an array of issues such as offshore trusts, preserving wealth, and minimising inheritance tax liability, and looking and trust structures. 

Our wills solicitors can also advise on lasting power of attorneys and probate issues. 

Our wills solicitors private client team are the specialist skill to assist you with tackling these difficult aspects to champion your rights. Contact our team of wills solicitors today to discuss your personal requirements.

Our probate fees start from 1% of the estate amount. Please contact us for further information.

What is a Will?

A Will is a legal document in which you can express your wishes as to how you wish for your property to be distributed after your death and who you wish to manage your property so that it is distributed according to your wishes. In this instance, your property does not necessarily mean a house; it (‘Estate’) encompasses of your assets such as cash, cars, investments, and other possessions.

If you die without a Will, i.e. intestate, then your Estate will be passed on in accordance with the laws of succession. If you do have a Will, then your Estate will pass on to whoever you wish to inherit.

There are some very important aspects to consider when thinking about wills:

  • If you are separated from your spouse (but not divorced) and you do not have a Will, then the laws of succession dictate that the first person to inherit your property will be your spouse, even though you are no longer together.
  • If you have a partner, but you are not married or have formed a civil partnership, then your partner can not inherit from your Estate if there is no Will.
  • If you have a Will already and you later get married or enter into a civil partnership, your previous Will becomes invalid.
  • If you have children, you can appoint a Guardian in your Will to care for them in the event of your death.

What is a Trust Will?

Where appropriate, we will recommend a Trust Will rather than a standard will. Unlike most other legal practices, we give legal advice rather than take your instructions. Trust wills provide a far greater level of protection to the testator in many instances. Here are just four instances where a Trust Will is likely to be more suitable for you.

1. Marriage After Death (MAD).
With mirror wills, the assets usually pass to the surviving spouse. This issue often occurs often when the surviving spouse remarries and dies before the second partner. This could result in the new partner inheriting the first partner’s wealth, so the children are accidentally disinherited.

2. Ex-partners.
It is possible that ex-partners receive a sizeable chunk of someone’s estate even though they have been divorced.

3. Children’s divorced partners.
With mirror wills, the children usually inherit the estate on second death absolutely. If they divorce, their inheritance is at risk as it must be noted in the financial settlement.

4. Long-term Care Planning.
The main residence must be included in the care assessment after first death (there is no issue for the first person as there is an occupant in the home). By severing the tenancy and passing the estate to the surviving spouse in a trust, the main residence is not valued in the care assessment due to the Palfrey Principle.

Lasting Power of Attorney (LPA)

When making a will, it is sensible to also apply for a Lasting Power of Attorney (LPA). This is a legal document that appoints others to make decisions regarding your health and care and / or financial affairs, including providing them with authority to make such decisions in circumstances where you no longer have the capacity to do so.

There are two types of Lasting Power of Attorneys, namely one which allows a person to make decisions about your financial affairs and the other enables decisions to be made on your health and care. It is possible to create both types or just one and you may also appoint the same person or different people to be your attorney under each type.

The Process

We will arrange to take your instructions and give you advice about your wishes. We will then provide you with an Order Summary that contains the data that you have provided us. At this time we will ask you to check this document and provide your identification documents. We will then commence the drafting of your wills and send you a copy in pdf format for your approval before we print the original documents.

The original Wills need to be executed (signed by you and two independent witnesses, who observed your signing of the will). We can assist with the execution of your Wills, or we can send the legal documents to you via first-class post. If so, you must provide us with photos of the signature pages, so that we can verify that the Wills were signed correctly.

Execution Formalities

The formalities for the valid execution of a will are found within Section 9 of the Wills Act 1937 and state that no will shall be valid unless:

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either –

I. Attests and signs the will; or
II. Acknowledge his signature, in the presence of the testators (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

What is a Probate Trust?

Creating a Probate Trust allows an asset, such as your main residence, to be placed into trust whilst allowing you to retain control and access to it. The main aim of a Probate Trust is to allow a family quick access to the asset on the death of the individual.

These types of trust are most used when an individual is concerned about the length of time it could take for the executors to achieve the Grant of Probate and settle the estate. The Probate Trust allows for the settlor to have full access to the property during their lifetime as they will automatically be included within the class of beneficiaries alongside chosen family members.

Because it is impossible to determine exactly what your financial situation will be when you die, the Probate Trust allows you to void the trust the day before you die if it is better financially to do so. This can be done retrospectively after you have died by your executors. The Residence Nil Rate Band (RNRB) is often lost with this type of planning, so the clause to void the trust prior death is imperative.

It is recommended that your will is reviewed during the process of setting up a lifetime trust. This is to ensure that there is no conflict between the will and the trust.

Our Probate Costs

As part of our professional rules, we aim to ensure that anyone wishing to use our services has the information they need to make an informed choice of legal services provider, including understanding what the costs may be. Find out more about our expert team of Probate Solicitors and learn more about the costs that may be involved.

Find out more

Useful information from your local wills solicitors

We have put together some useful pages of information that will help you gain a better understanding on many areas related to wills, trusts and probate. If you have any questions please just get in touch or complete the enquiry form below.

Make an enquiry

FAQs Regarding Wills

What is a will?

A will can be described as : “A written legal declaration of an individual’s intentions as to how he or she wishes to dispose of their property after death”.

  • It only takes effect on death.
  • It is a “living document” so can be changed during lifetime as long as testator maintains mental capacity to do so.

Why is having a Will important?

If you die without a Will, your estate will be dealt with by the strict rules of intestacy, which sets out who inherits from your estate and how much. This means that you will have no control over how and to whom your assets are distributed to.

The rules of Intestacy may not be in accordance with your wishes and someone you did not wish to inherit from your estate may stand to. Equally, if married, your spouse will only inherit a percentage of your estate, whereas you might wish for them to inherit it all.  

A Will therefore protects your family and guarantees that parts of your estate are not given to anyone you do not wish it to go to (e.g. an ex-spouse).

Furthermore, having a Will can ensure that your estate is as tax efficient as possible, meaning your family will not have to pay a penny more in inheritance tax than they need to.

What makes a Will valid?

  • For a Will to be valid according to English Law it must comply with Section 9 of the Wills Act 1837 which states it shall be executed as follows:

    • It must be signed by the testator (or some other person in his presence and at his direction)
    • The testator has to sign the Will with his usual signature and any signature may be acceptable as long as it was made with the intention of giving effect to the Will. 
    • Such signature to be made or acknowledged by the testator.
    • In the presence of two or more witnesses both present at the same time, who then each sign or acknowledge their signatures in the presence of the testator (but not necessarily in the presence of each other). This process is known as the “attestation” or “execution” of the Will.
    • The witnesses must be able to see the testator sign; therefore, they must not be blind.
    • The Will must be dated, either at the beginning or at the end of the Will.

What are some examples of acceptable signatures?

  • A Will signed by a mark only.
  • An incomplete or indecipherable signature.
  • A Will signed by some other person in the presence of and at the direction of the testator. 
  • In these circumstances it may be signed by the other person with the testator’s name or their own name. 
  • A Will signed in foreign characters or in shorthand.
  • A Will signed with words such as “Mum” or “Your Loving Mother” as long as there is no doubt as to whom the signature belonged.
  • Sometimes a hand-written Will may appear on the face of it to be unsigned and therefore invalid. (Wood v Smith [1992]).

What makes a Will Admissible to Proof?

For a Will to be entitled to proof in England and Wales under section 9 of the Wills Act 1837 it shall: 

  1. be in writing – a Will may be in handwriting, but may also be printed e.g. typed or produced by word processor. In fact, “in writing” means any visible form of representing words, including shorthand, Braille and code, provided that the code can be deciphered.
  1. take a gift of property situate in England and Wales or appoint an executor – The testator must have attempted one or both of these things.

Exception – Guardianship of Minors Act 1971 S 4.

Who can Witness a Will?

Section 15 of the Wills Act 1837 states that the witnesses should not be: 

  • Beneficiaries named in the Will or;
  • The spouses/civil partners of such beneficiaries.
  • If someone witnesses a Will and later on marries one of the beneficiaries, this will be acceptable, as they were not married at the date of the Will. If the witness is either a spouse of a beneficiary or the beneficiary himself, then according to the Wills Act, the Will is valid but the gift to the beneficiary will fail.
  • Witnesses do not have to be over 18, but they have to be capable of understanding the nature of the document they are witnessing and the implications of it.

What are my responsibilities as a witness?

The witnesses are there to ensure that the testator: 

  • Is making his Will of his own volition and understands what he is doing.
  • The witnesses do not have to see the content of the Will but have to see the testator sign in the presence of him/her self and the other witness and then sign in the presence of the testator.
  • Witnesses are bound by law to give the Probate Registry or any other proper authority (e.g. police, Crown Court) any information asked for regarding the execution of the Will. If the witness refuses to give such information they may be subpoenaed to attend and give evidence. If a subpoena is issued and they still do not attend they can be arrested.

Who can make a Will?

  1. Anyone who has the relevant capacity.
  • The test for capacity was set out in the case of Banks v Goodfellow (1870) – The testator must understand;
  • The nature of the act (i.e. making a Will) and its effects;
  • The extent of the property of which the testator is disposing, although just a broad recollection is enough;
  • The claims to which the testator ought to give effect i.e. the persons who are fitting of the testator’s bounty or rather those who ought to receive a benefit.
  • What if I am not mentally capable of making a Will?

Statutory WillsIf a proposed testator is not mentally capable of making a Will, then there are provisions under the Mental Capacity Act 2005 and the Court of Protection Rules 2007 which give the Court of Protection (COP) power to authorise a Will made on his/her behalf. In order for a Statutory Will to be made, an application has to be made to the COP.

  1. Testator must be over 18.
  • Can you make a Will if you are under the age of 18?

Privileged Wills – If a proposed testator is 17 or over and is on active military service with the armed forces, then he/she is entitled to make a Privileged Will under Section 11 of the Wills Act 1837 and the Wills (Soldiers and Sailors) Act 1918. This can be made in accordance with a different set of rules, other than those set out in Section 9 of the Wills Act 1837 (e.g. it does not have to be in writing, but any Will made in writing, need not be witnessed).

Can I revoke/cancel my Will if I wish?

    • A will can be revoked (cancelled) during the testator’s lifetime as long as he/she has the requisite capacity to revoke it.
    • A will may be revoked by: 
    • Marriage (unless made in contemplation of marriage).
    • Destruction.
    • Later Will or codicil.
    • Dependant Relative revocation.
    • Revocatory Instrument.

    Some Important Keyword Definitions:

    • A testator (male) / testatrix (female) who has made a Will or given a legacy.
    • A beneficiary is someone who receives something in a Will.
    • An executor is someone who is named in the Will as responsible for dealing with the estate.

FAQs Regarding Probate

What is Probate?

In English Law, Probate is the word used to describe the legal and financial processes involved in dealing with the assets of a person who has died.

Before the executor of the Will can claim, transfer, sell or distribute any of the deceased’s assets, they may have to apply for a Grant of Probate (a legal document which gives them special legal authority to deal with the deceased’s estate).

How Does the Probate Process Work?

The exact probate process can vary depending on the instructions left in the Will and the assets, creditors, and beneficiaries the estate has.

The basic process for an executor is:

  1. Gather the full details of the estate’s assets and debts.
  2. Apply for Grant of Probate (authority to distribute assets from the deceased’s estate).
  3. Complete an inheritance tax return and pay any tax due.
  4. The receipt of a Grant of Probate.
  5. Repay any of the deceased’s outstanding liabilities. 
  6. Distribute the rest of the estate according to the instructions left in the Will.

How Long Does Probate take?

For most estates, this will take around a year. However, the answer really depends on the size and complexity of the estate (i.e. if there are any disputes between the executor, beneficiaries, creditors, or HMRC).

Who Can Apply For Probate?

Only the executor can apply for probate to administer the deceased’s estate.

What if the deceased does not have a Will?

If someone dies without a Will, they are said to be ‘intestate’. The rules of Intestacy will dictate who can apply for a Grant of Administration to administer the estate instead. The then appointed administrator must distribute the assets from the deceased’s estate in accordance with The Intestacy Rules.

For more information, please contact us on 01865 246 991 or