20.12.16

By Clare Finn

Your Will sets out what you want to happen to everything that you own when you die. You can appoint Executors, who make sure your wishes are carried out, and you can appoint Trustees to look after money for any children who are under 18, or where the person you want to benefit is disabled or vulnerable and may need someone else to look after the money for them.

Intestacy Rules

Only 30% of the people who die have a Will. So what happens if there is no Will? This is called “Intestacy” which are ‘rules’ contained in Acts of Parliament and Regulations which define what happens to a person’s assets if they die without a Will.

Some misconceptions

Perhaps the biggest misunderstanding when a Will isn’t made is that money or property automatically passes to a “common law “partner. Although a relationship may last several years, and the couple may have children, the surviving partner will only receive an automatic inheritance under these rules if the couple were married or in a civil partnership. If the couple had not formalised their relationship the surviving partner would need to ask a Court to decide what money or property they should receive. If you are in a relationship with someone who is married or in a civil partnership but the marriage or partnership has not legally ended, the ex-partner might be legally entitled to a significant share or even all of the estate.

Many people believe that if they don’t make a Will everything they own, known as the “estate” will pass to their nearest and dearest when they die; this is not always the case. For example, these rules do not allow for any part of the estate to pass to a lesbian or gay partner unless the deceased was legally married or in a civil partnership with the partner when they died. The rules also do not allow for any part of the estate to pass to a step child, or a relative by marriage, such as a son in law, who is not a blood relative, or a close friend.

Property owned jointly by the deceased might pass directly to the surviving other owner, even though they are not a spouse or a civil partner, whether there is a Will or not.

What would my spouse or civil partner inherit?

Under the intestacy rules, if the person who has died, the deceased, is survived by his or her husband, wife or civil partner, and there are no children, the survivor will receive all of the estate.

What happens if the deceased had children?

Where the deceased had children, and is survived by a husband, wife or civil partner, the surviving partner will receive the first £250,000 and one half of the rest of the estate.  The children of the deceased will receive the other half once they reach the age of 18.

If the deceased had a son or daughter who died before them, their own children will inherit in their place.

If there are children or grandchildren but no surviving husband, wife or civil partner, the deceased’s children will share the estate when they reach the age of 18.

Where there are no children, and no surviving wife, husband or civil partner, the estate passes to other relatives, including brothers and sisters, parents, grandparents, aunts, uncles and nieces and nephews. The intestacy rules set out who has priority. If there are no family members who fit the rules the estate will go to the Crown.

What happens if my Will isn’t valid?

The intestacy rules also apply where there is a Will but the Will does not cover all of the property and money owned by the deceased. This is called partial intestacy and sometimes happens where a Will does not include the right wording. Therefore, the parts of the estate that are not covered by the Will will be covered by the intestacy rules.

Sometimes there is a Will, but it is not legally valid, perhaps it was not signed or witnessed properly. For example, if you act as a witness to your spouse’s Will, you will be excluded from inheriting any part of their estate under that Will.

The best way of making sure that your family and friends will receive what you want them to have when you pass away is to take advice from a lawyer about putting a Will in place. For more information, please contact us.

These comments apply to England and Wales. The law and procedures in Scotland and Northern Ireland are different.