What happens if I do not have a Will when I die

Rules of Intestacy

The Intestacy Rules are set out in legislation namely, Section 46 of the Administration of Estates Act 1925 as amended. The rules set out an order of priority in which your family will inherit your estate.

This means that your estate will be distributed between family members, some potentially distant or unknown to you, according to the hierarchy set out in the rules, regardless of your personal relationship with them.

The rules are as follows:

• If you are married with no children when you pass away then everything will go to your spouse or civil partner.
• If you are married with children then your spouse or civil partner will receive everything up to the value of £270,000 and the half of anything remaining. The other remaining half is then shared equally between your children.
• If you are not married and have children, then everything is divided equally between your children.
• If you are not married and have no children then the estate will be shared equally between any family who remain in priority order of the Intestacy Rules:

1. Parents
2. Siblings (or their surviving children if they are deceased)
3. Step-siblings (or their surviving children if they are deceased)
4. Grandparents
5. Uncles or Aunts (or their surviving children if they are deceased)
6. Step-Uncles/Aunts (or their surviving children if they are deceased)

If there are no surviving relatives under the Intestacy Rules then the estate passes to the Crown as ‘ownerless property’ – known as bona vacantia. This includes all kinds of property including buildings, money, and personal possessions. These estates are known as unclaimed estates.

Why can not having a Will be a problem?

Some people take the view that not having a valid up to date Will may not is too much of an issue; however, these circumstances can be littered with problems for many individuals.

Family members and close relatives who you may not have known or wanted to be in control of, or more importantly benefit from your estate may well end up doing so.

Division of assets

Through an intestacy, there is no control over what happens to the assets in an estate. It may have been that the deceased person wanted to leave specific gifts to certain family members, friends or charities, but without a Will stating this, these gifts cannot be honoured.

Surviving Partners and Cohabiting Couples

Dying intestate is a particular concern for cohabiting couples where there are children. If you die without a Will and wanted to leave your estate or part of your estate to your partner then this will not happen under the intestacy rules. Even if you had lived together for the entirety of your lives, they would receive nothing.

It is important to note that ‘common law spouse’ is not an official title and provides no protective rights.

This is the same for any children that your partner had (who are not your biological children/adopted by you) even if they were financially dependent on you, under the intestacy provisions they are not in line to receive anything from your estate and will not benefit.

Inheritance tax

The estate may be above the inheritance tax threshold and without a Will, the estate will not necessarily be divided in the most tax-efficient way. There are various reliefs and exemptions that can be utilised to reduce the inheritance tax liability of an estate. Dying intestate could mean that the estate is liable for an inheritance tax bill that could have been avoided had a Will been made.

Young beneficiaries inheriting

Without a Will, young beneficiaries may inherit significant sums of money without any proper consideration. In a Will, you can stipulate that children or grandchildren do not inherit from your estate until they have reached a certain age, or until they are of a more mature age.

Appointing a guardian

If you pass away leaving young children and you have not drawn up a Will, you will have missed the opportunity to appoint a guardian for your children in the event that they are left without a parent.

Named beneficiaries

In the event that you pass away, and you have no living relatives remaining then your estate will pass to the government. You will have missed the opportunity to benefit a charity or to leave your estate to good friends, neighbours, carers, relatives by marriage or even former spouses or civil partners. You also lose your choice as to who inherits your estate.

Management of an intestate estate

The process of dealing with an estate that is intestate is generally more time-consuming when compared to an estate where there is a valid Will. This can put stress and strain upon your nearest and dearest at the most challenging and emotional time.

In addition, this can become very difficult for families where there are complex family dynamics, or family members have passed away leaving children, meaning their share could be divided between multiple beneficiaries which can increase the complexity of the estate.

There may also be additional work involved in tracing beneficiaries which would impact your estate financially.

How do I prevent an intestacy in my estate?

Ensure that you have had a solicitor draft a valid Will and make sure you have correctly executed the Will. Most importantly, review your Will every 2-5 years to be sure that it continues to reflect your wishes and especially after any significant developments within your family, such as getting married or having children.

Why should I have a Will?

One of the main reasons for having a Will is that you ensure your wishes are set out. You are in control of who you would like to benefit from your estate, in what quantities and when. For example, you may have young grandchildren and would like them to inherit when they are 21.

Additionally, you can choose who manages your estate. You can have conversations with your appointed executors in advance, or you can opt to have a professional executor in place such as a solicitors firm if you feel this would be more appropriate for your circumstances.

How can Alsters Kelley help?

At Alsters Kelley Solicitors, we have a team of experienced solicitors to support you in writing your Will. Headed up by Neil Raiseborough, the Wills, Probate, Tax and Trusts team have been recommended in the Legal 500 an independent directory that assesses the strength of law firms across the United Kingdom.

For expert advice contact our team today by calling 01926 356000 or contact Neil by emailing neil.raiseborough@alsterskelley.com.