Where will my estate go if I do not have a Will?
If you die ‘Intestate’, there are strict principles which govern who will inherit your estate. These vary slightly depending on which country of the UK you live in.
For example, in England and Wales, if you are married or in a civil partnership, your partner will inherit all assets up to £250,000. Any inheritance above this amount will be divided in half, with the partner receiving one half and the other being divided equally between any children you have, including any legally adopted children. If any of these have predeceased you, their share will be divided between their children, if any.
It is worth bearing in mind that this applies only to a husband, wife or civil partner. If you are in an informal partnership, your partner will not be entitled to anything under the Intestacy Rules. The term “common law husband or wife” is not recognised under the Intestacy Rules.
If you do not have a living partner, the estate will be divided equally according to the following precedence, passing on to the next if no-one is available:
- Your surviving children, or the children of any who have died
- Your parents, if still living
- Your full brothers and sisters
- Your half brothers and sisters
- Your grandparents, if still living
- Your aunts and uncles, or the children of any who have died
- Your half aunts and uncles, or the children of any who have died
If none of these options is available, your estate will pass to the Crown under the law bona vacantia. This means that dying ‘Intestate’ could result in the whole of your estate being lost.
What other issues might occur if I do not have a Will?
Besides not being able to decide who inherits, other issues can arise from dying ‘Intestate’. One is that, if your estate is subject to Inheritance Tax, this might be higher than if you had left a valid Will.
Another issue can arise if you own anything jointly, such as a home. Your share of the property would pass to the surviving co-owner by survivorship. In the case of a property, this only applies to beneficial joint tenancies, not to tenancies in common.
This can actually help — for instance, if you co-own your home as joint tenants with a partner you are not married to, it will ensure the home passes to them automatically.
If you do not wish for the co-owner to inherit your share of the property on your death then you can stipulate this in your Will but only if the property is owned as tenants in common.
What can be done?
If a close relative has died without leaving a valid Will, you can apply to be administrator of the estate. This is similar to being the executor of a Will. You can administer the disposal of the estate, but you will not be able to decide what happens to it.
If the surviving heirs wish to change the way the estate is divided up, they can do so by making a deed of family arrangement, or variation. This requires the consent of all relevant parties. For instance, if the estate is to be divided between the person’s children, all of these must be in agreement.
This could be used, for example, to assign specific assets to each of the heirs, rather than them having to be sold and the resulting money shared. Alternatively, it may have been accepted within the family that one particular sibling would receive the home, and this could be specified as that person’s share.
Also, if you are not included in the sharing of the assets but feel you deserve something, you could apply to court for financial help from the estate. This might apply, for instance, if you were living with the person as a partner without being married or in a civil partnership.
Should I leave a Will?
Your family will inherit your estate if you die ‘Intestate’, but it may not be divided up as you would want. If you would have wished an unmarried partner, in-laws, friends, carers or charities to receive bequests, this is not possible without a Will. And then there is the subject of children, and who you would like to look after them, as well as any special assets that you own.
The Intestacy rules provide a backstop for dealing fairly with an unfortunate situation, but they do not in any way compare with having a valid Will.
To find out more about making a Will, or to make an appointment with one of our expert Wills advisors, please call us on 01525 378177, or you can get in touch with us online.