Despite the fact that having a Will has a number of very clear benefits – not least of which is that you can choose what happens to your estate after you die – statistics still show that over half the UK population die without making a valid Will and approximately 5 million people don’t even know how to make one.
Part of the reason for this is that a lot of people believe one thing:
That if you die without making a Will, any assets you own (including property, money and any savings) will automatically go to their spouse and children
Unfortunately, in many cases this is simply not what happens. So let’s look at some simple facts:
- If you die without making a Will, your estate will be dealt with according to the law of intestacy (you will be intestate). The law of intestacy sets out a hierarchy of distribution of an estate where a person dies without making a Will.
- Only married couples or civil partners and some other close relatives can inherit under the rules of intestacy (this does not currently include unmarried couples, same sex partners not in a civil partnership, recently divorced couples and step-children)
- Divorce does not invalidate a Will, it applies as if your ex-spouse had died on the date of the divorce – so you will need to review what this means for your Will.
- The rules of intestacy may not distribute the estate in the most tax efficient way or in a way the deceased would have done if given the choice
The laws of Intestacy are as follows:
Surviving spouse but no children – where there is a surviving spouse but no children, the spouse inherits everything. But remember, this will only be after a costly probate process.
Surviving spouse and children – where there is a surviving spouse and children, the intestacy rules will share the estate as set out below.
- The spouse of the deceased will receive everything up to the value of £250,000 including personal chattels.
- Anything in addition to the £250,000 is divided in two. Half will go to the spouse and any children will receive the other half when they reach the age of 18.
Children but no partner – if there are children but no spouse or civil partner, the children will inherit everything and all proceeds will be equally split between them. “Children” includes adopted children but not stepchildren.
No partner and no children – the estate will fall to the deceased’s parents. If the parents of the deceased have themselves died, the assets will be allocated in the following order:
- Brothers and sisters (or nephews and nieces if the sibling has died)
- Uncles and aunts (or cousins if the uncle or aunt has died
- Failing the above, the estate goes to the Crown which is known as “bona vacantia.”
And what happens to joint assets under intestacy:
If the home is jointly owned, the deceased’s share will automatically pass to the surviving partner by way of survivorship.
If the home is owned as tenants in common, the survivor isn’t automatically entitled to inherit the share of the property and therefore the deceased’s share will pass in accordance with the laws of intestacy.
Couples may own joint bank accounts or building society accounts. The survivorship rule applies in this instance also where the surviving partner will automatically inherit all the money in the account.
Of course, it is not only not having a Will that could cause this situation to arise – if a valid Will cannot be found then the law of intestacy will arise – or if an old Will is the only one found that’s why when you have written your Will you should consider two things:
- Destroying any old Wills
- Letting someone know where your valid Will is kept or putting it in secure storage
There is a common misconception that you only need to make a Will when you reach a certain age, but this is not true… you should make a Will where you are married, have children, have a positive net worth or are in a civil partnership.
Making a Will is one of the most important things you can do because it allows you to decide how your assets will be distributed and to whom on your death. Not only does a Will enable you to do this, but also to make provisions for your children by appointing guardians, provisions for pets, gift personal items to loved ones and donating to a charity by appointing responsible and trustworthy executors who will deal with your estate in accordance with your wishes. Ensuring that everything you leave behind for your loved ones is dealt with exactly as you wished and saving your family a lot of trouble – and potential heartache.