Wills, Probate and Lasting Power of Attorney in England 2026: A Plain Guide for Families
This wills probate England 2026 guide explains, in plain English, how to protect your family. A valid will under the Wills Act 1837 lets you choose who inherits and who administers your estate; without one, the intestacy rules decide, and an unmarried partner can be left with nothing. We cover how to make a will that stands up, when probate is needed and how long it takes, the two types of lasting power of attorney, realistic costs, and exactly what happens if you die without a will.
Estate planning is easy to postpone and expensive to get wrong. The three tools that matter for most families are a will, probate and a lasting power of attorney, and they fit together. This guide walks through each, and clears up the myths that cause the most heartache.
Why You Need a Will in England & Wales
A will is the only way to decide, in advance, who inherits your estate, who carries out your wishes, and who looks after your children. Without one, the law makes those decisions for you through the intestacy rules, which rarely match what people actually want.
A will lets you:
● Choose your beneficiaries and what each receives.
● Appoint executors you trust to administer the estate and carry out your wishes.
● Name guardians for children under 18, rather than leaving it to the courts.
● Make specific gifts, provide for stepchildren or charities, and plan sensibly for inheritance tax.
The biggest myth is that a long-term partner will "automatically" inherit. They will not: only a spouse or civil partner has intestacy rights, so an unmarried partner can receive nothing without a will, however long you have lived together.
How to Write a Valid Will: Requirements Under English Law
The formal requirements come from the Wills Act 1837, and getting them wrong can invalidate the whole document. To be valid, a will must generally meet these conditions:
● It is in writing.
● The person making it (the testator) is at least 18 and has the mental capacity to understand what they are doing.
● The testator signs it, intending by that signature to give effect to the will.
● The signature is made or acknowledged in the presence of two or more witnesses, present at the same time.
● Each witness then signs, or acknowledges their signature, in the presence of the testator.
One trap catches many home-made wills: a witness, or the spouse or civil partner of a witness, must not be a beneficiary, because a gift to them will usually fail. Choose independent witnesses. Remember too that marriage or civil partnership normally revokes an earlier will, while divorce affects gifts to a former spouse, so review your will after any big life change. Keep the signed original somewhere safe and tell your executors where it is; a will no one can find is little better than no will at all.
Probate: When Is It Required and How Long Does It Take?
Probate is the legal authority to deal with someone's estate. Where there is a valid will naming executors, they apply for a grant of probate; where there is no will, an administrator applies for letters of administration.
You usually need a grant to release assets such as property, or bank accounts above a bank's own threshold. You often do not need one for small estates, or for assets held as joint tenants, which pass automatically to the survivor outside the estate.
The steps are broadly: value the estate, report to HMRC and pay any inheritance tax due, apply for the grant, then collect the assets, settle debts and distribute to the beneficiaries. On timing, be realistic. Once an application is submitted, obtaining the grant currently takes a number of weeks, and applications have at times faced delays. Administering the whole estate commonly takes several months, and longer for complex or contested estates. A probate application fee applies (currently £300 for estates over £5,000; smaller estates pay no fee).
Executors and administrators take on real responsibility. They must act in the beneficiaries' interests, keep estate money separate from their own, and can be personally liable if they distribute the estate and a debt or valid claim later surfaces, which is why professional help is common for anything beyond a simple estate.
Inheritance tax is worth a word. Each person has a tax-free "nil-rate band" of £325,000, potentially increased by a residence nil-rate band where a home passes to direct descendants, and transfers between spouses or civil partners are generally exempt. Anything above the available bands is taxed, so early planning can make a real difference.
Lasting Power of Attorney: Property & Financial vs Health & Welfare
A lasting power of attorney (LPA) lets you appoint someone to make decisions if you lose the capacity to make them yourself. It is made under the Mental Capacity Act 2005 and must be registered with the Office of the Public Guardian before it can be used. There are two types:
● Property and financial affairs: covers money, bank accounts, bills and property. Once registered, it can be used while you still have capacity, if you permit, which is useful for practical help.
● Health and welfare: covers medical treatment, care and daily routine, and can only be used once you have lost the capacity to decide for yourself.
Crucially, you can only make an LPA while you still have capacity. Leave it too late and your family may have to apply to the Court of Protection for a deputyship instead, which is slower, more costly and more stressful, and brings ongoing supervision fees and annual reporting. An LPA made in good time is almost always the cheaper and kinder option. Choose attorneys you trust completely, consider naming replacements, and budget for the registration fee (currently £82 per document, with reductions for those on low incomes).
Costs: DIY vs Solicitor-Drafted
● DIY wills using online templates or kits are cheap, sometimes free, but carry real risk: invalid execution, ambiguous wording and unintended tax consequences are common, and the mistakes only surface after death when they can no longer be fixed.
● Solicitor-drafted wills typically cost from around £150 for a straightforward single will to several hundred pounds or more for complex estates, trusts or tax planning. For most people with property, children or a blended family, that is money well spent.
The same logic applies to LPAs: the forms can be completed yourself, but professional help reduces the chance of a document being rejected on registration or failing to do what you intended.
One consumer note: will-writing is not a reserved legal activity in England and Wales, so unregulated will-writers can and do offer services. If you pay for help, check whether the provider is regulated (for example by the SRA) and carries insurance, because your family's recourse if something goes wrong depends on it.
Intestacy Rules: What Happens If You Die Without a Will
If you die intestate, the estate passes under a strict statutory order:
● Spouse or civil partner and children: the spouse takes all personal possessions, the first £322,000 of the estate outright (a figure reviewed periodically), and half of the remainder. The children share the other half.
● Spouse or civil partner, no children: the spouse takes the whole estate.
● Children, no spouse: the children inherit equally.
● No spouse or children: the estate passes to other relatives in order: parents, then siblings, and onward.
A worked example: an estate of £522,000 with a surviving spouse and two children. The spouse takes the chattels, £322,000, and half of the remaining £200,000 (so £100,000); the two children share the other £100,000. Unmarried partners and stepchildren who were never adopted receive nothing under these rules. Some can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but that means litigation, not certainty.
Frequently Asked Questions
Is a handwritten will valid in England? Yes, if it meets the Wills Act 1837 formalities, including signature and two independent witnesses present together.
Do I always need probate? No. Small estates and jointly held assets often pass without a grant, but property and larger accounts usually require one.
Can I write my own will online? You can, but errors in wording or witnessing are common and only emerge after death. Take advice if your affairs are not simple.
Will my partner inherit if we are not married? Not under intestacy. Without a will, an unmarried partner has no automatic entitlement, whatever your circumstances.
When should I make a lasting power of attorney? While you still have capacity. You cannot make one once you have lost it, so sooner is safer.
Key Takeaways
● A valid will under the Wills Act 1837 needs writing, capacity, signature and two independent witnesses.
● Probate is usually required for property and larger accounts, and administering an estate often takes several months.
● A lasting power of attorney must be made while you have capacity and registered before use.
● Without a will, intestacy applies and an unmarried partner can inherit nothing.
Sources
● Wills Act 1837; Administration of Estates Act 1925 (intestacy); Mental Capacity Act 2005 (LPAs)
● Inheritance (Provision for Family and Dependants) Act 1975; HMRC inheritance tax guidance
● gov.uk guidance on applying for probate, intestacy and lasting powers of attorney
Planning your will or an LPA and want to understand the rules first? Research Wills & Probate Law with Ask.Legal for a clear, sourced starting point.
This article is general information about the law of England and Wales as at 2026, not legal advice. For advice on your circumstances, consult a qualified solicitor.