What if there isn’t a Will?
We are forever reminding clients that it is a very good idea to make a Will. We always stress all the good reasons why clients should make a Will. We also understand that, for whatever reason, many clients just don’t get round to it. However, there is a downside to not having a Will which we rarely focus on and, with that in mind, feel it is appropriate to present the position if you die and there isn’t a Will.
One of the things that immediately comes to mind when we think about this situation is that when there isn’t a Will, family arguments can frequently arise. Some of these are easily resolved, whilst others cause terrible disagreements. At a time of sadness, the last thing anyone needs is resentment amongst the loved ones left behind. If you make a Will, most, if not all, of this can be avoided.
What happens to your property and assets if you don’t have a Will?
The position when someone dies without making a Will can be complicated. If you die without making a Will and you have a spouse or a civil partner, they are entitled to Prior Rights. That means they would inherit the family home (up to a maximum value of £473,000), the contents of the family home (to a value of £29,000) and a cash sum of money. The cash amounts are £89,000 if the deceased had no children or £50,000 if the deceased had children.
There are two important things to note about this. The first is that if you are cohabiting with your partner but are not married or in a civil partnership with them, they have no automatic rights to your estate. Your surviving partner would need to apply to the court within 6 months of your death to make a claim on your estate. The second point to note is that any children do not need to be children of yourself and your spouse or civil partner. If the deceased had children with another partner before entering into the marriage or a civil partnership, those children are counted when considering the cash amount available under Prior Rights.
You should also be aware that if you have children from a previous relationship, after you’ve passed away, those children would not automatically be entitled to share in any of your estate that passed to your spouse or civil partner on your death. If your surviving spouse or civil partner has any children from a previous relationship, it is they who would inherit once your surviving spouse or civil partner dies.
What about the family home?
We should make special mention about the family home at this stage. It may be that you and your spouse or civil partner jointly owned your family home. The title to the house may be structured in two ways. It may provide that on the death of one of the parties, the title automatically transfers to the survivor. We call this a survivorship destination. Alternatively, whilst the title may be joint, it may be structured so that on death, the share (and it is usually 50%) held by the deceased transfers to their successors. Under Prior Rights there is provision that the ownership of the property (where there is no survivorship destination) would pass to the surviving spouse or civil partner. However, for cohabiting partners, the position can be much more precarious.
If, for instance, you are not married and your partner has children from a previous relationship, if the title to the house does not contain a survivorship destination, when your partner dies his or her children inherit their share of ownership in the house. This is clearly not a suitable or convenient position for the survivor to be in. On these occasions, there is every possibility that the children from that previous relationship will insist on their inheritance and that might mean having to sell the house. Clearly that position could be protected if there was a Will which contained a liferent but, sadly, without a Will, this might become an issue that it very difficult, if not impossible, to resolve.
What about Legal Rights?
If there is any property left after satisfaction of Prior Rights, we then need to consider Legal Rights.
Your spouse or partner is entitled to one third of your remaining estate or one half if there are no surviving children. Again, if you are cohabiting but not married or in a civil partnership, your partner has no Legal Rights. Any children are entitled to one third of the remaining estate, divided between or amongst them. However, how those children agree what parts of that third of the estate they are to receive can cause huge disagreements. If you had a Will, you would not generally have this problem.
After these two shares, your children or your closest relatives are entitled to the remainder of your estate.
This is a fairly simple summary of the law of succession. There are many complications that can arise, However, we have not gone into these for the sake of keeping this fairly simple and straightforward.
We believe that, having read this, most clients will come to the conclusion that it’s sensible to make a Will and that making a Will might just take a little bit more thought that you might imagine.
If you would like to discuss making your Will or, if you have a Will, updating it, please get in touch today.