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What happens if you don't make a Will?

Understanding Intestacy

Failing to make a Will can have upsetting consequences.

When practising Probate law, I am often called upon to administer the estate of the person who has died without making a Will. Sadly, that frequently involves my having to deliver bad news to the deceased person’s nearest & dearest. 

When someone passes away without a valid Will in England and Wales, their estate is subject to the rules of Intestacy. The laws governing this process are clear but may lead to outcomes the deceased would never have intended.

There is an order of priority governing who will inherit if you die without a Will. In the simplest possible terms, your nearest relative will inherit. But it's not as straightforward as that. There are nuances that can cause complications for those left behind.

Intestacy in England and Wales:

1. Your Spouse:

If you are married, your spouse is your nearest relative. That is all well and good if you are a child-free couple - in the event of your death, your spouse will inherit everything. 

But if you are a parent, your spouse’s position is not as secure. In the event of your death, your spouse is guaranteed to inherit the first £250,000 of your assets. Any assets over and above that level are inherited 50% by your spouse and 50% by your children.

This may not be at all desirable if you want your spouse to have access to all your capital if widowed. To make sure that your spouse has complete financial security, it's essential that you make a Will.

If you are a stepfamily, the situation may be all the worse. Your children will only inherit half of anything over £250,000. Your spouse automatically inherits everything else. This could leave your children with very little provision, or none at all. What makes it worse still is that, when your surviving spouse dies, those assets will go to their side of the family rather than to your children.

There is a law dating back to 1975 that protects children who are still underage and dependant on you. But children who have already flown the nest are pretty much left out in the cold by the absence of a Will. 

 2. Children and Descendants:

If you are a single, divorced, or widowed parent, your children will inherit all of your assets.

This also applies if you are an unmarried couple who have children together. In the absence of a Will, it will be your children who inherit rather than your partner. 

In a very distressing case I dealt with recently, a lady came to me after her partner had suddenly died. Their home was in his sole name, and he had not made a Will. Their house was inherited by their 12-year-old son, but because there was a mortgage still in place, and a mortgage company will not lend to someone underage, the house was ultimately repossessed. Consequently, my client and her son lost their home.

3. Parents and Siblings:

If you are unmarried and don't have children, your parents will inherit your assets, even if you live with a partner and would want them to inherit. 

If your parents are deceased, your brothers and sisters will be next in line. This does not include half-brothers and half-sisters, however. They will only inherit if you don't have brothers and sisters of the full blood.

And if you're an only child who has outlived your parents, the order of priority provides for more distant relatives such as cousins. However, there is a limit to the relatives who can inherit from you. If you don't have family members who are closely enough related to you, all your assets are claimed by a scary-sounding government agency called the Bona Vacantia Unit! Depending on where you live, your assets could be inherited by the King himself. Although the King has pledged to give all such inheritances to charity, a recent item in the news revealed that such inheritances are often used to refurbish the King’s properties. 

4. Unmarried Partners, Friends, and Charities:

Sadly, your partner, your friends, and your favourite charities don't figure at all in the order of priority under the intestacy rules. So, if you live with your partner, they will get nothing from your estate in the event of your death unless you have made a Will. 

Failing to make a Will also means that you lose the opportunity to leave gifts to the friends that you care about or to the charities that are important to you.

5. Administrative Challenges:

The Probate Service handles your estate in broadly the same way whether you have a Will or not. However, there are important differences which can cause complications.

In the absence of a Will, your nearest relative is the person with legal responsibility for putting your affairs in order after your death. If your nearest relative is a child, or someone with a disability, or a complete stranger to you, complex administrative hoops have to be jumped through before the process of administering your estate can even begin.

6. Guardianship of Children:

One of the most upsetting unintended consequences of not having a Will, is that there is no clarity about your children’s care and upbringing if they are orphaned before they are adults. Care proceedings have to take place in the Family Court when a child is orphaned and their parent hasn't made a Will, even if family members are ready and willing to step up.

Some years ago, I acted for a girl of 15 whose parents tragically died in a house fire. Her uncle and aunt gladly took her in, but before I could even begin the process of administering her late parents’ estate for her, she had to go through six distressing months of hearings in the Family Court before her uncle and aunt could officially be appointed as her Guardians. None of that would have happened if her parents had thought to make it will.

Avoiding Intestacy: A Prudent Choice

Given the potential problems that accompany Intestacy in England and Wales, having a well-drafted Will is essential. It not only provides clear instructions on who should inherit, but also minimizes stress for your loved ones during an already difficult time.

Conclusion

If you want to secure your legacy, it's essential that you understand precisely how the Intestacy rules affect you. Better still, if you have a carefully drafted will in place, you have the peace of mind of knowing for sure that the people you care about will be provided for precisely as you intend. 

If you're not sure about how the Intestacy rules apply to you, or if you want to make sure that your needs and those of your family are fully met, feel free to reach out for advice.

You can book a Zoom consultation with me at https://calendly.com/gina-stanton-lawyer/one-hour-zoom-consultation or you’re very welcome to call me on 0151 601 5399 or fill in the contact form below. I’m here to offer guidance. Let's work together to ensure your legacy is preserved.

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