About this series of articles
This is one in a series of information articles about writing a last will and testament.
Property you can leave in your will
The following is a summary of what you may leave to your beneficiaries.
- All your moveable possessions situated in the UK. These would include possessions like your car, jewellery, furniture, paintings, and stamp collections.
- All real property (land and buildings) located in the UK. If you own property in the UK as a joint tenant (as most married couples and civil partners do), then your half share passes automatically on your death to your co-owner. You have no choice in the matter. If you own property as 'tenants in common', then you can control who receives that share.
- Note that the value of your share (whether you hold it as joint tenants or have a tenants in common agreement in place) will be included in the valuation of your estate for the purposes of inheritance tax, unless one of the exemptions applies.
- Your business. (We have a separate article on passing on ownership of your business after your death that you might like to read.)
- Possibly, your foreign property located outside the UK. This question has to be resolved by the law of the country in which that property is located. If the property is moveable, you or your heirs might decide to bring it back to the UK.
- In practice, it is sensible to check the validity of any UK-written will to dispose of any asset of high value outside the EU or what you might call 'Western' countries. Note: this is a different issue from taking out a grant of probate on your estate, where a local grant will almost always be necessary. But as long as your will has been prepared properly, your executors will have the power to deal and you can leave that to them.
- Intangible assets such as financial instruments, shares, and bonds, and
- Intellectual property such as domain names, patents, copyrights, rights to sue for damages and rights under contracts.
- Self administered pension plans (SIPPS) and other pension schemes. Great care i s needed here because your pensions could well be your most valuable asset. The care is needed by you in planning and later by your executors to make sure the trustees of any pension or pension policy are aware of any claim your executors might make. What they can claim depends entirely on the rules of the particular scheme.
Most problems with wills arise in connection with real property and intellectual property. Most countries in the EU and many other countries worldwide will accept an English (and Welsh) will but may require a separate probate to be taken out locally.
Property you cannot leave in your will
Insurance policies (or other assets already) in trust
When you take out an insurance policy you may stipulate that the policy is taken out on trust for some other person or people. You can also make a written declaration at any time in respect of an existing policy that the policy will be held on trust for others. When a policy is 'on trust' for someone, it means that the other person or group of people have the benefit of it. The advantage of a policy or other financial instrument being in trust is that on your death (or the maturity of the policy) the value of the policy does not form part of your estate.
Assets payable immediately to the trustees without waiting for a grant of probate
These might include expenses related to your death, such as for your funeral.
Other property you do not own
There are several other situations where a testator may believe he owns property which is not his to give. The most important of these are:
- possessions subject to a hire purchase agreement
- property left to you only for your lifetime
Your body
However, the Human Tissues Act of 1961 and the Anatomy Act of 1984 in effect provide that if you express a wish at any time in writing or during your last illness orally in the presence of two witnesses that your body, or any part of it, shall be used for therapeutic purposes or for the purpose of medical education, research or anatomical examination, then your executors or administrators may authorise such use. Similarly any such person may authorise any part of your body for such use if, after making all reasonable practical enquiries, he has no reason to believe that you or your surviving spouse or relatives would object. For more information read about how to donate your organs or body after your death.
Property you may not be able to leave in your will
Shares in a company
Some companies state in their articles of association or shareholders' agreement that you cannot transfer the shares in the company, without first offering them to the other existing shareholders. So, on your death, your shares may have to be sold and the value of them gifted, rather than the shares themselves being gifted. If you own shares in a small or family company you should check the position first with the company secretary or at Companies House.
Further information
The next article in this series explains the legal terminology in a will. It should help you decipher the jargon that we cannot avoid using.
We also recommend that you read about mirror wills. These are popular with married couples, yet can be ineffective at achieving what each person wants at the time of his or her death.
We believe that everyone over 18 should have a will. So as to encourage you to make one, we provide some of our more straightforward will templates (suitable for most people) absolutely free with no catches or conditions.
We offer nine templates in total that together cover thousands of possible variations of wishes. There will be one to suit your situation. If you are in doubt as to which best suits your needs, read about where to start when making your will, which explains what you should look for in a template.