Introduction to Wills and Estate Administration

1. Introduction

Every adult in England and Wales will leave behind an estate — the aggregate of everything they owned at the moment of death, minus everything they owed — and that estate has to be collected in, the debts and tax paid, and what is left distributed to whoever is legally entitled to it. Wills and the Administration of Estates is the body of English law and practice that governs how all of that is done.

It is one of the oldest parts of the English legal system. The Wills Act 1837, still in force, sets out the formal requirements for a valid will that remain the law today. The Administration of Estates Act 1925 governs the distribution of the estate of a person who dies without a will and the powers of those who administer an estate. The Inheritance Tax Act 1984 governs the tax charged on death and on many lifetime gifts. Alongside these sit a number of more specialised enactments — the Trustee Act 1925, the Trustee Act 2000, the Inheritance (Provision for Family and Dependants) Act 1975, the Inheritance and Trustees' Powers Act 2014, and the Non-Contentious Probate Rules 1987 — which supply the rest of the working machinery.

For the purposes of SQE1 FLK2 you need to master this machinery at the level of a newly qualified solicitor in practice: someone who, on day one in the office, can sit across a desk from a recently bereaved family, identify the legal issues correctly, apply the right rule, reach the right answer, and spot when a matter needs to be escalated. That is the standard against which the FLK2 single best answer questions are set, and it is the standard to which this book is written.

2. The Three Phases of Practice

Although the FLK2 syllabus lists its topics under abstract headings — validity of wills, intestacy rules, grants of representation, administration, inheritance tax — in practice every Wills and Estates instruction falls into one of three distinct phases. Knowing which phase a scenario is in will help you identify, on the spot, which rules are likely to be in play.

1.2.1 Phase 1 — Planning the Will (lifetime)

During the client's lifetime the solicitor's role is to take instructions, advise on how the client wishes to pass on their estate, draft a valid will, arrange for its execution in accordance with section 9 of the Wills Act 1837, and store it safely. Planning work also includes advising on lifetime gifts with a view to mitigating inheritance tax (IHT), on structuring assets to take advantage of the nil rate band and the residence nil rate band, on lasting powers of attorney, and on the interaction between a will and other devices (life policies in trust, pension nominations, and jointly held property). The law that governs Phase 1 is concentrated in Chapters 2 and 3: the validity of the will itself, and the interpretation of the gifts made by it.

1.2.2 Phase 2 — Obtaining the Grant of Representation

Once the client has died, the next task is to obtain legal authority to deal with the estate. That authority comes in the form of a grant of representation issued by HM Courts and Tribunals Service (HMCTS) through the Probate Registry. If the deceased left a valid will the executors named in it apply for a grant of probate; if not, those entitled on intestacy apply for letters of administration; if there is a will but no proving executor, for letters of administration with the will annexed. Phase 2 also involves valuing the estate, completing an inheritance tax account (normally IHT400, or nothing at all if the estate is an excepted estate under the 2022 regulations), arranging the initial payment of any IHT due, and filing the application online via MyHMCTS. The law that governs Phase 2 is in Chapters 4, 5, 6, 7 and 9.

1.2.3 Phase 3 — Administering the Estate

Once the grant has issued the personal representatives (PRs) can collect in the assets, pay the debts and liabilities, pay any income tax and capital gains tax falling due during the administration, pay the legacies, and distribute the residue to the beneficiaries. PRs have statutory powers of sale, investment, appropriation and advancement, and they are subject to a statutory duty of care under the Trustee Act 2000. They must protect themselves against unknown creditors and missing beneficiaries — typically by advertising under section 27 of the Trustee Act 1925 — must identify and respond to any claim brought under the Inheritance (Provision for Family and Dependants) Act 1975, and must produce estate accounts for the beneficiaries. The law that governs Phase 3 is in Chapters 8, 11 and 12.

3. Sources of Law

The law of wills and estates is predominantly statutory. If you remember four statutes you will have 80% of the law: the Wills Act 1837 (validity and interpretation), the Administration of Estates Act 1925 (intestacy and PR powers), the Inheritance Tax Act 1984 (tax), and the Inheritance (Provision for Family and Dependants) Act 1975 (family provision). The Trustee Act 1925, the Trustee Act 2000 and the Non-Contentious Probate Rules 1987 supply the remaining machinery.

1.3.1 Primary Legislation

The Wills Act 1837 is the foundation statute for the making, revocation and interpretation of wills. Section 7 fixes the minimum age to make a will at 18; section 9 sets out the four formal requirements for execution; section 15 causes a gift to an attesting witness or their spouse to fail; sections 18, 18A, 18B and 18C deal with the effect of marriage, divorce, civil partnership and the dissolution of a civil partnership on an existing will; section 20 governs revocation; section 21 deals with alterations; and section 33 substitutes a deceased beneficiary's issue for the beneficiary in certain family gifts. You will meet all of these in Chapters 2 and 3.

The Administration of Estates Act 1925 governs intestacy and the powers and duties of personal representatives. Section 33 imposes a statutory trust (with power to sell) on the personal representatives where a person dies wholly or partly intestate; section 34(3) and Part II of Schedule 1 set out the order for payment of debts in a solvent estate; section 35 enacts the rule in Locke King that a charged asset bears its own charge; section 41 is the PRs' power of appropriation; section 46 sets out the distribution on intestacy (as amended by the Inheritance and Trustees' Powers Act 2014); section 47 creates the statutory trusts for issue.

The Trustee Act 1925 supplies three further provisions that FLK2 tests routinely. Section 27 gives PRs and trustees protection against unknown creditors and beneficiaries by means of statutory advertisement; section 31 (maintenance) and section 32 (advancement), both as amended by the ITPA 2014, are the default statutory powers for minor and contingent beneficiaries, with section 32 now permitting advancement of up to the whole of a beneficiary's presumptive share; and section 61 gives the court a discretion to relieve PRs and trustees from personal liability where they have acted honestly and reasonably. The Trustee Act 2000 imposes the statutory duty of care in section 1 and Schedule 1, and confers a general power of investment (s.3) subject to standard investment criteria (s.4), a duty to obtain advice (s.5), a power to acquire land (s.8) and a power to delegate (s.11).

The Inheritance Tax Act 1984 is the code for inheritance tax. The headline rules are simple — death rate 40% (with a 36% charity rate where at least 10% of the net estate passes to charity), lifetime rate 20% on chargeable transfers into trust, nil rate band of £325,000 and residence nil rate band of £175,000. The detail — cumulation, taper, business and agricultural property relief, the gift with reservation of benefit rules and the seven- and fourteen-year rules — is the substance of Chapters 9 and 10.

The Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) gives a defined class of family members and dependants a statutory right to apply to court for reasonable financial provision out of the estate within six months of the date of the grant. It is covered in Chapter 8. Finally, the Inheritance and Trustees' Powers Act 2014 (ITPA 2014) modernised the section 46 AEA 1925 intestacy distribution (abolishing the surviving spouse's statutory life interest) and modernised sections 31 and 32 of the Trustee Act 1925; all figures and distributions in this book already reflect the ITPA 2014 amendments.

1.3.2 Secondary Legislation and Rules of Court

The Non-Contentious Probate Rules 1987 (NCPR 1987), as amended, are the procedural code for probate applications. Rule 20 sets out the order of priority to apply for a grant where there is a will; rule 22 sets out the order of priority on intestacy; rule 27 governs renunciation; rule 44 governs caveats; and rule 46 governs citations. Contentious probate claims (including claims under the I(PFD)A 1975 and probate claims challenging validity) are governed by Part 57 of the Civil Procedure Rules. The Inheritance Tax (Delivery of Accounts) (Excepted Estates) Regulations 2004, as substantially amended from 1 January 2022, govern the current regime for excepted estates where no IHT account is required; the pre-2022 IHT205 form has been abolished.

1.3.3 Professional Conduct

The SRA Code of Conduct for Solicitors, RELs and RFLs 2019 is the foundation of Chapter 12. Paragraph 1.2 prohibits the abuse of position for personal benefit; paragraph 6.1 governs own-interest conflicts; paragraph 6.2 governs conflicts of interest between two clients; and paragraph 6.3 governs confidentiality. Alongside the Code, the Law Society Practice Note on making gifts of money or property to solicitors gives the significant value guidance that a solicitor must apply when a client wants to leave them a gift by will.

4. Key Terminology

The vocabulary of probate practice is largely Victorian and is not always intuitive. The following paragraphs introduce the core vocabulary you will need throughout this book. Do not try to memorise it all in one sitting — the meanings will become second nature as you work through the substantive chapters. Two umbrella terms, however, justify learning now: Personal Representative and Grant of Representation are used in every subsequent chapter.

1.4.1 People in a Wills Matter

A testator (or, for a female client, sometimes testatrix) is a person who makes a will. A person dies testate if they leave a valid will and intestate if they do not. A beneficiary is a person entitled to take a benefit from the estate — either under the will (a legatee or devisee) or under the rules of intestacy. A beneficiary has no proprietary interest in any particular estate asset until it is assented or appropriated to them: before that their right is only a chose in action to have the estate properly administered (Commissioner of Stamp Duties v Livingston [1965] AC 694). Table 1.1 summarises the people you will meet in a Wills matter.

1.4.2 The Estate and its Gifts

The estate is the aggregate of all property that the deceased was beneficially entitled to at the moment of death, less debts and funeral expenses. Gross estate is the value before deductions; net estate is after. For IHT purposes (Chapter 9) the estate immediately before death under section 5 IHTA 1984 is slightly wider than the estate that the PRs can actually deal with, because it includes items such as the deceased's severable beneficial interest in jointly-held property.

A gift made by a will may be a legacy (a gift of personal property), a devise (a gift of real property) or a bequest (either). Modern drafting tends to use gift or legacy for all of them, but the FLK2 examiners sometimes use the traditional terms. Legacies are further classified as specific, general, demonstrative, pecuniary or residuary — the residuary legatee takes what is left after every other legacy and every debt, tax and expense has been paid. The classification determines whether a gift fails by ademption, whether it bears its own inheritance tax, and in what order it abates if the estate is insolvent. Chapter 3 works through this classification in detail. Table 1.2 is a quick reference.

1.4.3 Life and Death of a Will

A will may be supplemented by a codicil — a formal document that amends an existing will. A codicil must itself comply with the section 9 Wills Act 1837 formalities and, when validly executed, republishes the will as at the date of the codicil for most purposes. A will may cease to have effect by revocation: expressly by a later will or codicil, impliedly by a later inconsistent will, by destruction with the intention to revoke (section 20 Wills Act 1837), or automatically by the testator's subsequent marriage or civil partnership (sections 18 and 18B). Two further events may cause a particular gift to fail without revoking the will as a whole: ademption, where a specific gift fails because the subject-matter no longer forms part of the estate at death (for example because it was sold or given away); and lapse, where a gift fails because the named beneficiary predeceases the testator. Lapse is disapplied by section 33 of the Wills Act 1837 where the gift is to the testator's issue and the deceased beneficiary leaves issue who survive the testator, in which case the deceased beneficiary's share passes per stirpes to their issue. All of this is developed in Chapter 3.

5. The Solicitor's Role Across the Three Phases

The way in which a solicitor adds value differs sharply between the three phases, and the FLK2 examiners test knowledge of the solicitor's role in each phase separately.

In Phase 1 (will-planning) the solicitor takes instructions face-to-face or by video. They must satisfy themselves that the client has testamentary capacity and is not acting under duress or undue influence; they must keep a careful attendance note; they must apply the Law Society's golden rule and take independent medical evidence whenever there is any doubt about the client's capacity (Kenward v Adams (1975); Key v Key [2010]). They must then draft a will that accurately reflects the client's wishes, advise on IHT planning, and arrange for proper execution under section 9 of the Wills Act 1837. If the client wants to leave a gift to the solicitor personally, or to the solicitor's family or firm, the solicitor must apply the conflict rules in Chapter 12 before going any further.

In Phase 2 (applying for the grant) the solicitor is normally acting for the PRs, not the beneficiaries. Their client is therefore the person entitled to apply: executors under NCPR rule 20 if there is a will, or those entitled on intestacy under NCPR rule 22 if there is not. The solicitor collects information about the assets and liabilities of the estate, values them at the date of death, completes and files IHT400 (or establishes that the estate is an excepted estate so that no IHT return is required), arranges for the initial payment of any IHT due, and submits the application for the grant via MyHMCTS supported by a statement of truth.

In Phase 3 (administration) the solicitor normally continues to act for the PRs. They advise on the collection of the assets, the payment of debts in the statutory order, the handling of specific and pecuniary legacies, the tax position during the administration period, the form and content of the estate accounts, the transfer of the residuary estate to the residuary beneficiaries, and the PRs' personal protection under section 27 of the Trustee Act 1925. If a claim is brought under the I(PFD)A 1975 the solicitor advises on whether to contest it or settle it. At the end of the administration the solicitor delivers the estate accounts and, where assets remain on a continuing trust, transitions from acting for the PRs to acting for the trustees.

6. The SQE1 FLK2 Assessment

SQE1 is composed of two multiple-choice assessments: FLK1 (Functioning Legal Knowledge 1) and FLK2 (Functioning Legal Knowledge 2). Each assessment contains 180 single best answer questions presented in two sittings of 90 questions, each sitting lasting 2 hours 33 minutes (five hours and six minutes of assessment time in total). The FLK2 assessment covers Property Law and Practice, Wills and the Administration of Estates, Solicitors' Accounts, Land Law, Trusts, and Criminal Liability and Criminal Law and Practice.

Of the 180 questions in FLK2, between roughly 18 and 24 are expected to fall within the Wills and Estates syllabus on any given sitting. Of those, the SRA specification indicates that approximately one-third will relate to inheritance tax (Chapters 9 and 10 of this book), so the largest single investment of your revision time should be in those two chapters. The remaining questions are distributed across validity and execution (Chapter 2), interpretation and failure of gifts (Chapter 3), personal representatives (Chapter 4), intestacy (Chapters 5 and 6), grants and administration (Chapters 7 and 8), and conduct (Chapter 12).

1.6.1 The Single Best Answer Format

Every question presents a factual scenario (usually three to ten lines of text), sometimes followed by additional documents such as a clause extracted from a will, a letter, or an IHT figure, and then asks 'Which ONE of the following…'. Five options, A to E, follow. Exactly one of the five is the single best answer. The others may be wrong because they apply the wrong rule, misstate the rule, misapply the rule to the facts, describe a permissible course of action that is not the best one in the circumstances, or simply invent a legal proposition.

There are no negative marks. You should answer every question. If you are uncertain between two options, pick one — leaving the question blank is worse than a 50% chance of picking the right answer. If you are truly stuck, move on and flag the question; you can return to it at the end of the paper.

The five options are never obviously silly. The wrong answers are designed to reward careful reading: a common trap is an option that states a correct proposition of law that, on the facts given, simply does not apply. Another is an option that applies the right rule but misstates it by one word — for example 'within six months of the death' when the statutory time limit is six months from the grant of representation, not from the death. Read the stem carefully and read every word of every option. 'On the facts given' is the relevant phrase, not 'in principle' or 'in most cases'.

1.6.2 What FLK2 Examiners Test in Wills

Five recurring question types appear in the Wills section of FLK2. First, validity questions: does the document count as a valid will, given the facts about its execution, the testator's capacity, or subsequent events such as marriage, divorce, destruction or alteration? These test Chapter 2. Second, gift-failure questions: does a particular gift in the will take effect, or does it fail by lapse, ademption, disclaimer, the witness-beneficiary rule, or the effect of divorce? Does section 33 Wills Act 1837 save the gift for the beneficiary's issue? These test Chapter 3. Third, distribution-on-intestacy questions: who takes the estate under section 46 AEA 1925, applying the £322,000 statutory legacy, the 28-day survivorship requirement, and the statutory trusts? These test Chapter 5.

Fourth, grant and administration questions: who can apply for the grant, what kind of grant is needed, and what powers and duties does a PR have — particularly in relation to the protection of PRs against unknown claims, and the scope of a claim under the I(PFD)A 1975? These test Chapters 4, 7 and 8. Fifth, IHT calculation questions: apply the nil rate band, the residence nil rate band, the taper relief on failed potentially exempt transfers, the charity rate, business and agricultural property relief (taking into account the £2.5 million combined allowance from 6 April 2026), and the burden and incidence rules, on the facts of a worked scenario. These test Chapters 9 and 10 and are the single largest block of Wills questions.

7. How to Use This Book

Each of Chapters 2 to 12 is structured in the same way. An SQE Assessment Advice box at the start identifies what the FLK2 examiners are most likely to test on the topic. A short Introduction section previews the chapter and anchors it in the three-phase framework from 1.2. Numbered substantive sections then set out the law, with full statutory references and case citations. Every important rule is followed by a worked example that applies the rule to a concrete set of facts. Inline callout boxes — KEY TERM, SQE EXAM TIP, EXAMPLE, WARNING and (where applicable) FUTURE REFORM — draw attention to points that students most often get wrong.

At the end of each chapter you will find a Key Notes table summarising the main rules, concepts and authorities for final-stage revision, a Revision Notes section with five broad Q&A prompts, and five SQE1-style single best answer practice questions with a full answer key explaining why each option is right or wrong. Several of the practice questions are adapted from the SRA's own published sample papers.

8. Key Notes (Chapter Summary)

The following summary table consolidates the main rules, concepts and authorities examined in this chapter. Treat it as a revision checklist — you should be able to explain each row from memory.

9. Revision Notes

Work through each of the following focused revision prompts. Attempt to answer from memory first — the note underneath gives the model answer and explains why the point matters for the SQE1 FLK2.

10. MCQ Practice — Five SQE-Style Questions

Test your understanding with the following SQE1-style single best answer questions. Each question has five options, and only one is correct. Attempt each question closed-book, write down your answer, then turn to the answer key. The answer key explains why each option is correct or incorrect — read every explanation in full.

A. A grant of representation is the document that creates the personal representatives' authority to administer the estate in every case, and no person has any power to take steps in the administration before the grant is issued.

B. A grant of representation is the order of HM Courts and Tribunals Service that confers authority on the personal representatives to administer the estate; executors derive their authority from the will itself and may take limited steps before the grant issues, whereas administrators derive their authority solely from the grant.

C. A grant of representation is the formal document by which the Probate Registry transfers title to each estate asset into the name of the residuary beneficiary.

D. A grant of representation is required in every estate before any bank, building society or other institution may release any funds in the deceased's name, regardless of the size of the estate.

E. A grant of representation is the document by which the beneficiaries of the estate acquire their beneficial interests in the specific assets of the estate; until the grant issues, the beneficiaries have no interest at all.

A. Phase 1 is the collection of the estate's assets; Phase 2 is the payment of the debts and the inheritance tax; Phase 3 is the distribution of the residue to the beneficiaries.

B. Phase 1 is obtaining the grant of probate; Phase 2 is collecting the assets and paying the debts; Phase 3 is distributing the estate.

C. Phase 1 is taking instructions and drafting the will during the client's lifetime; Phase 2 is obtaining the grant of representation after death; Phase 3 is administering the estate (collecting assets, paying debts and tax, and distributing).

D. Phase 1 is the client's lifetime tax planning; Phase 2 is the valuation of the estate for IHT purposes; Phase 3 is the filing of the IHT account.

E. Phase 1 is the making of the will; Phase 2 is the administration of the estate; Phase 3 is the creation of any continuing trusts for minor beneficiaries.

A. The rule that a later marriage revokes an earlier will is set out in section 18 of the Wills Act 1837.

B. The rule that a later marriage revokes an earlier will is set out in section 46 of the Administration of Estates Act 1925.

C. The rule that a later marriage revokes an earlier will is set out in the Inheritance Tax Act 1984.

D. The rule that a later marriage revokes an earlier will is set out in section 27 of the Trustee Act 1925.

E. The rule that a later marriage revokes an earlier will is set out in the Non-Contentious Probate Rules 1987.

A. The Wills Act 1837.

B. The Administration of Estates Act 1925.

C. The Inheritance Tax Act 1984.

D. The Inheritance (Provision for Family and Dependants) Act 1975.

E. The Trustee Act 2000.

A. The solicitor's client in Phase 3 is the residuary beneficiaries of the estate.

B. The solicitor's client in Phase 3 is the personal representatives; the beneficiaries are not the clients.

C. The solicitor's client in Phase 3 is whoever has the largest financial interest in the estate, whether that is a PR or a beneficiary.

D. The solicitor's client in Phase 3 is the Probate Registry, because the solicitor is accountable to the Registry for the administration of the grant.

E. The solicitor's client in Phase 3 is the deceased, because the duty of confidentiality to a deceased client continues after death and must be exercised through the solicitor rather than through the PRs.