When someone dies without a Will, this is known as being intestate. But what happens if you don’t make a Will? We explain the process and why it’s always important to make sure you have a legally binding and up-to-date Will.
Only 35% of UK adults have made a Will
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What makes a Will valid?
In the UK it’s generally older generations who make a Will, which is understandable as we naturally think more about our morbidity as we age. But unfortunately, nobody knows what life has in store, and when someone dies without a Will, things can get complicated. The rules of intestacy apply when someone passes away without a valid Will. As a result, people can be disinherited for various reasons, for example, estranged couples or blended families.
A ‘valid’ Will is one that is legally binding by following specific formal requirements. The Will must cover every aspect of someone’s estate, which includes property, possessions and money. It also needs to take into account what would happen if a beneficiary were to die before the person making the Will. The beneficiaries are the people named in the Will who will inherit from the person’s estate.
A Will needs to be formally witnessed by people not named as beneficiaries. Any changes to the Will must also be signed and witnessed or the Will could be deemed invalid. Many people are unaware that marriage and civil partnerships can override an existing Will. It’s very easy to make mistakes when making a Will, which is why it’s important to use a specialist solicitor.
The rules of intestacy
When there is no Will, the Courts appoint people to handle the deceased's estate. Known as “Letters of administration”, this document gives someone the right to manage the deceased’s assets, money and property.
Under the rules of intestacy, only current spouses and registered civil partners can inherit. The allowable amount paid to the surviving spouse or civil partner from an intestate person’s estate is known as the “Statutory Legacy”. In July 2023, this increased from £270,000 to £322,000.
The remaining amount is then split 50/50 between the survivor and their children, if any. The surviving partner would also inherit all of the belongings and personal property. If there are no surviving children, grandchildren or great-grandchildren, then the surviving spouse or civil partner will inherit the entire estate. If there is no surviving partner or direct descendants, other relatives might also stand to inherit, such as brothers, sisters, nephews and nieces, and so on.
The biggest problem with the rules of intestacy is when a couple are not married or in a civil partnership. In some cases, people might have separated but they never divorced or applied for a dissolution. In these instances, an ex-partner could inherit everything, while a current cohabiting partner would not. As there’s no such thing as a ‘common law’ partnership, cohabiting partners would not inherit anything under the rules of intestacy.
Under intestacy rules, jointly owned property is another factor to consider. Shared homes are usually owned either as “joint tenants” or “tenants in common”. A joint tenancy means that when one partner dies, the surviving partner would automatically inherit the property. Tenancy in common means that each person has their own share of the property, so the survivor would not automatically inherit the deceased’s share. This share, for example, might be written into a Trust.
Make a Will
When it comes to making a Will, this is your only way to prevent possible future estate and disinheritance issues. If you are cohabiting, it’s essential to make a Will so you can protect your partner. If you have a blended family, a valid Will ensures your own children will inherit from you when you die. Writing a Will is your opportunity to make sure your wishes are carried out and those you choose will stand to inherit from your estate.
You should review your Will every year to ensure it’s up to date and reflects your current situation. Always update your Will after a major life event in your family, such as marriage, divorce, death or the birth of a new child.
Our Wills, Trusts and Probate solicitors offer sympathetic and caring advice to help you make a legally binding Will. Our aim is to make sure your estate goes to the people you choose when you pass away. We will discuss any potential concerns around your estate or possible disinheritance matters. You will be informed of your options at every stage of the process.
If you need to make or update a Will, please get in touch or email: lbacon@shbsolicitors.co.uk to arrange a face-to-face or telephone appointment.