If you do not lay out formally how you would like your assets to be divided following your death in the form of a Will, it will be left to the government to decide for you, using the rules of intestacy.
It is thought that this is not widely understood by the population, and hence why most people don’t prioritise the creation of a Will. If it was widely known that dying intestate could cause considerable stress and heartache for the family of the deceased, it is likely many more people would draft a Will.
What are the Rules of Intestacy?
Under the rules, an estate will be apportioned according to a strict order of priority:
- Spouse or civil partner
- Brothers and sisters
- Uncles and aunts
If the person is married, the value of their estate up to £250,000 will be passed onto their spouse or civil partner. If they have children, the surviving spouse will keep £250,000 plus half of any residual value. The other half of the residual estate will be passed onto the children of the deceased, or their grandchildren if the children have died.
If there is no surviving spouse, civil partner, children or grandchildren, the entire estate will pass onto the next surviving relative in order of priority; parents, siblings, grandparents, uncles and aunts. If there are no surviving relatives, the estate will pass to the Crown.
The pitfalls of the Rules of Intestacy for cohabiting partners
When the Rules of Intestacy apply, a cohabiting partner has no entitlement to inherit. Let’s imagine that a couple have been living together for 25 years and own a home. Unless the property is held as a joint tenancy, which has a right of survivorship, the entirety of the deceased’s estate will pass to the relative with the highest priority.
In this situation, it may be possible to fight for part of the estate under the Inheritance (Provision for Family and Dependants) Act 1975. However, you would need to show you were financially dependent on the deceased and considerations will be made regarding how much independent money you have, the overall size of the estate, your possible future needs, and the financial position of the beneficiaries under the intestacy rules.
Claiming under the Inheritance (Provision for Family and Dependants) Act 1975 results in significant legal bills and stress for the claimant, all of which can be avoided by the testator by simply creating a valid Will before departing this earth.
Is a DIY worth the paper it is written on?
There are many DIY Will options available online or from various other providers; some costing as little as £10. However, while an off-the-shelf Will may seem a cheap option to avoiding dying intestate, if they are not witnessed and signed correctly, they may be deemed invalid.
To be legal, a Will must comply with the specifications set out in the Wills Act 1837, section 9 which reads as follows:
No Will shall be valid unless:
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the Will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the Will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
It is all too easy to skip one or more of these steps when relying on a DIY Will.
The devil is in the detail
Even if the above rules are met, thereby making a DIY Will valid, there is one vital missing ingredient; someone who understands the implications of Wills who will ensure that each of the key elements are covered. A solicitor who specialises in the drafting of Wills will take the time to understand your exact wishes and ask many questions that you may never have considered. For instance, do you wish to pass on your wedding rings or be buried with them? Are there any sentimental possessions that you wish to give to your Godchildren or close friends? How do you want your social media accounts dealt with upon death? Who will look after your children if you and your spouse/partner both died at the same time? Have you thought about your pets?
Investing in a Will drafted by an experienced Solicitor
By engaging the services of a specialist Wills solicitor, you can save your loved ones the time and expense of a delayed or refused grant of probate, or worse still, having to deal with the consequences of the Rules of Intestacy. In addition, you can ensure that your Will is legally valid and reflects your true wishes.
A solicitor can also help you understand how to plan for any inheritance tax obligations your descendants may be subject to and suggest ways to decrease the amount owed on your estate. This can be done in a variety of ways, for example:
- ensuring you take full advantage of the inheritance tax and main residential nil rate band
- gifting parts of your estate while you are still alive
- creating a trust
Wills, if drafted corrected will accurately reflect your wishes, and make the process of dividing your estate more straightforward, and hence less stressful for your family. This will give you the confidence that you have done all you can to protect your descendants and your property when you die.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced family law team who can assist you with drafting a Will that faithfully reflects your wishes for the division of your assets. To make an appointment, please call us on 01932 840 111.