If you die without making a Will, the assets you leave (‘your estate’) will be distributed according to fixed legal rules. These rules are called ‘The Intestacy Rules’. Only a spouse, civil partner or certain specified close blood relatives can inherit under the Intestacy Rules, and they will inherit only in a fixed order of priority.
What is Intestacy?
‘Intestacy’ is how we describe the situation generally when someone dies without having made a Will. If you die without a Will, you are described as dying ‘intestate’ and the Rules of Intestacy will apply to determine how your estate is distributed.
What are the Rules of Intestacy?
These are the rules which set out who will inherit your estate, and in what proportions if you die intestate in England and Wales:
– If you die and are married or have a civil partner, and you have children, your spouse or civil partner will inherit the first £270,000 of your estate, above this amount they also inherit half the balance. The other half is divided equally between your children at age 18.
– If you are not married or in a civil partnership, your children will inherit everything equally at age 18.
– If you are married or in a civil partnership and you do not have any children, your spouse or civil partner will inherit everything.
– If none of these circumstances apply, then your parents (if living) may be beneficiaries in equal shares, or if they have both died, your siblings (brothers and sisters) may inherit in equal shares. The list then goes on if none of these closest relatives survive you.
– The Intestacy Rules are completely arbitrary and the people who receive your assets may not be the ones you would have chosen if you had written a Will. The distribution of an estate where there is no very close family can be very fragmented, and identifying and locating the beneficiaries can be both difficult and expensive.
Does it matter if I don’t have a Will?
The simple answer for most people is ‘yes’ it does matter if you do not have a Will. The impact in some cases can be very significant.
In some circumstances the Intestacy Rules may produce the same result as the one you would want if you had made a Will. In this case, your Will can be very straightforward, and it will still make things easier for your beneficiary or beneficiaries. Writing your Will should take away areas of uncertainty, and it will help your beneficiary (practically, financially and sometimes emotionally) to have a positive written statement from you that you actively wanted them to inherit your assets, instead of them just being the default beneficiary under the Intestacy Rules.
What problems could there be if I die without making a Will?
Here are just some some of the issues that could arise if you were to die without a Will:
1. First and foremost, your assets may not go to the people you would have chosen if you had made a Will.
2. There may not be fair or adequate provision for someone who depended on you while you were alive.
3. Children may inherit at an unsuitable age. Most people choose not to give a sizeable inheritance to someone who is just 18 because they may squander it or be easily taken advantage of by others. Sometimes there can be catastrophic consequences when someone who is immature inherits too much money.
4. Beneficiaries whose circumstances make them vulnerable may not be adequately protected if they inherit outright under the Intestacy Rules.
5. Cohabitees and stepchildren will not inherit under the Intestacy Rules.
6. If you don’t have a spouse or civil partner or other close blood relatives as specified by the Intestacy Rules, then ultimately your assets may pass to the Crown.
7. Before someone can just access your assets after you die by applying the Intestacy Rules, especially if there is no spouse or civil partner or close blood relatives, efforts will need to be made to be as certain as possible that you really didn’t make a Will. This takes time and effort, and can involve expenses that could so easily have been avoided by you making a Will.
8. In some cases, inheritance tax might be paid because the Intestacy Rules apply, and a Will could have mitigated this.
9. If the Intestacy Rules apply it may be necessary for someone to make a claim against the estate to get the outcome and fairness that should have been created by your Will. Sometimes a court application will be required. This will always take time, be expensive and often cause totally unnecessary distress for the people involved.
10. Sometimes if relatives who would have inherited under the Intestacy Rules have died, their children become beneficiaries. Distributions can then become quite widespread and complex which inevitably makes matters more expensive.
How can McKenzie Law help you?
Most obviously, we can help you make a properly considered Will before you die so that your assets pass in the way that you want. We will help you protect children or beneficiaries whose circumstances make them vulnerable. This will limit the possibility of someone bringing a claim against your estate, and save money. We will help you make sure that your arrangements are tax efficient and appropriate for all the circumstances. Your Will might help protect your estate against future care fees payable for your spouse or civil partner. If your spouse remarries, you may want to make sure that your estate doesn’t pass to their future spouse. A good Will should help make sure that more of your money goes to the people or charities that you choose. It is vitally important to get good advice when you make your Will. Don’t shop around for the cheapest Will, look for the best advice. This will save money and anguish in the long run. A badly thought out or drafted Will can cause just as many potential problems as the Intestacy Rules.
We can also help you if you need to deal with the estate of someone who has died intestate. We can advise to ensure that the estate is correctly distributed, and in some cases, we can help you make a Deed of Variation to get a better or more appropriate outcome than the Intestacy Rules create.
In summary; don’t die intestate. Get good legal advice and make a well thought out Will and keep it under review as your circumstances change.
Make sure that the people who need to know are aware that you have made a Will and where it can be found. If your Will is stored with a Solicitor and registered with Certainty, the National Will Register, it should be easily located when you die. ‘Mystery’ about whether you have made a Will and where it is results in delay and expense after you die.
The people or charities that you care about will inherit more of what you leave, in the most appropriate way, if you make a well-considered Will.
If you need to sort out the estate of someone who has died without a Will, take timely legal advice to make sure that the estate is being shared out correctly. Remember to also consider whether a better outcome can be achieved from a Deed of Variation being made within two years of the date of death, if this is viable.