01278 457 891 01308 459 533 01305 458 189 01823 446 200 01935 382 680

What Our Clients Say

< Prev Next >


What happens if I do not make a Will?

To illustrate why it is important to make a Will, it is perhaps to show what happens if a person dies without having made a Will.

In such a case, the law sets out:

1. Who will inherit your estate; and
2. Who will have the legal authority to deal with your estate.

The order of persons entitled is set down in the statutory intestacy rules.

When a person dies without a valid Will it is his/her relatives who may benefit from his/her estate and the groups of eligible relatives are as follows:

  • Spouse/Civil Partner*
  • Issue
  • Parent(s)
  • Brother(s) or sister(s) of the whole blood or their issue
  • Brother(s) or sister(s) of the half blood or their issue
  • Grandparents
  • Uncle(s) or aunts(s) of the whole blood or their issue
  • Uncle(s) or aunts(s) of the half blood or their issue

*As defined by the Civil Partnership Act 2004 (civil partnership registration of same sex couples - see HMRC.gov.uk or contact our wills, probate and tax planning solicitors for further details)

Who takes what?

The answer depends upon the size of the estate and which, if any, of the above group of relatives are living at the time of a person's death and fully eligible to inherit.

It is worth noting that the word 'issue' means children or grandchildren or remoter lineal descendants. Adopted and legitimated children can also inherit under the intestacy rules. The same is true of illegitimate children, provided they can prove their parentage. Step-children do not qualify unless they have been legally adopted by the deceased.

Does a spouse/civil partner always qualify?

Divorce or legal separation breaks the inheritance chain, until then, however, whether or not the husband and wife or civil partners are living together, they are still treated as married. Therefore if a person is in the process of divorcing or separating it is very important to consider making a Will (or changing an existing Will) if that person does not want his/her spouse/civil partner to inherit.

Problems can result.

As you will appreciate, to die without a valid Will can cause problems.

For example, the person or persons you may wish to deal with your affairs and inherit may not be entitled and relatives with whom you might have lost touch (or never even met) may have to be located, which can take additional time and money.

The order of distribution on an intestacy

The following example situations illustrate the operation of the intestacy rules in respect of all deaths occurring on or after 1st February 2009.

Married person - with children

The surviving spouse/civil partner gets everything up to a value of £250, 000¹, plus personal possessions.

Anything remaining is divided:

  • Half goes to the children at 18 years of age, equally;
  • The other half goes into a trust during the lifetime of the surviving spouse/civil partner under which he or she gets only the income with no access to the underlying capital. On the death of the surviving spouse/civil partner this half (or the then value of such) goes to the children at 18 years of age, equally.

Married person – no children

If the person has parents or brother(s) or sister(s) of the whole blood (or issue of deceased brother(s) or sister(s)):

The surviving spouse/civil partner gets everything up to £450,000² plus personal possessions;

Anything remaining is divided:

  • Half goes to the surviving spouse/civil partner outright; then
  • The remaining half goes to the parents. If no parent is living, then this half goes to the brother(s) or sister(s) of the whole blood or, if they are dead, to their issue.

No surviving spouse/civil partner

For example, in the case of a death of a widow/widower, bachelor or spinster or divorcee who has not remarried, the following list sets out the groups of eligible relatives who may benefit from his/her estate and the order in which they are applied:

  • Children or remoter descendents
  • Parents
  • Brother(s) and sister(s) of the whole blood or their issue
  • Half brother(s) and half sister(s) or their issue.
  • Grandparents
  • Uncle(s) and aunt(s) or their issue
  • Half uncle(s) and half aunt(s) or their issue
  • The Crown or to the Duchy of Lancaster or the Duchy of Cornwall for the time being as 'bona vacantia'.

So, for example, if there are no children or remoter descendants, the parents inherit; grandparents would inherit only if there were no surviving children or remoter descendants, parents or brothers or sisters of any kind or their offspring.

It is worth making a Will?

For reasons of certainty, cost and peace of mind it is best to make a Will.

This guidance memorandum takes into account UK law and practice as we understand it to be as at the 7 May 2013.

The law relating to intestacy can be complicated and difficult to understand, which is why this guidance memorandum is not intended as a comprehensive summary, but only as an outline of the intestacy rules as at the 23 August 2012. For more detailed information, or should you require any clarification for a particular situation, contact a member of our wills, probate and tax planning team for further advice. 

Ask Us a Question

Call us free on 0800 862 0442 to speak to one of our friendly advisors, or complete the form below and we will email you back as soon as possible.

Captcha
Reload Image

Featured Media