I haven’t got a will – but I’ll be ok right?

Yes you will, that is because a will does not come into effect until you pass away so the problems that arise from not having a will are not yours to solve. Your family and close friends on the other hand…

Let’s look at this from a different perspective and consider what happens if you die without a will. Your finances are covered by the rules of intestacy, these are fairly complicated and set out who inherits, this will depend upon whether you are married or not and whether you have children or not. In particular the rules of intestacy only recognise relationships of blood, marriage, civil partnership and legal adoption.

If you are married the first £270,000 of your estate passes to your spouse along with all your personal possessions and anything over this is split with 50% going to the surviving spouse and 50% being split equally between any children of the deceased. In a moment we will look at some examples and consider how these rules might be problematic.

Before then I want to mention some of the other problems that arise from not having a will:

  • Guardians for minor children. You can appoint guardians in your will who are responsible for the physical care of your children under 18. Without a will there is much less certainty over this process – who brings your children up is up for negotiation after your death, hopefully this can be resolved amicably between your family and friends but this may not be and worse case scenario social services have to get involved. In any event your children may not end up living with who you would want them to.
  • Age of inheritance. If under the inheritance rules there is someone under the age of 18 who is due to inherit the money will be held on trust for them until they are 18. However, at 18 they get everything, depending upon how much this is and the person themselves this may not be a good thing for them. Inheriting a large amount of money at 18 to do with as you wish can be problematic and in some cases cause more problems than it solves.
  • Personal Representative. In a will you can choose who acts as Executor and Trustee and so you decide who is in charge of sorting out your estate and looking after the assets for the beneficiaries. Without a will the rules of intestacy sets out who has to take on this rule and this again may not reflect your wishes.

So coming back to my examples lets think about Fred, Fred has a son Gary and a long term partner Sarah. Sadly, Fred and Gary are estranged and have not spoken since Gary was 5. Gary is now 35 and has never meet Sarah. Fred and Sarah live in a house owned by Fred worth £300,000 and Fred has £30,000 of savings in the bank. Fred dies without a will and under the intestacy rules everything passes to Gary and Sarah receives nothing. Bearing in mind the estrangement this seems unlikely to reflect Fred’s wishes and although Sarah can challenge the intestacy rules through the courts and bring a claim under the Inheritance Provision for Family and Dependants Act 1975 this is not an easy process and will be expensive and time consuming to pursue.

Lets look at a different example, John and Jenny were married for 40 years and had 3 children. Jenny sadly passed away 5 years ago and John met and married a lady called Sue. Sue moved in with John and they lived in John’s house and saw John’s children regularly. Sue has one daughter of her own. John died without a will and at the date of his death he owned the house worth £200,000 and had savings of around £5,000. Under the intestacy rules everything passed to Sue as John’s surviving spouse and his children received nothing. Sue got on very well with John’s children and agreed to do a will to ensure that everything went back to John’s children on her death, unfortunately Sue died before she could put a will in place and so everything she inherited from John passed to Sue’s only daughter.

Final example is Jane, Jane has two adult children Emily and Derek. Emily works as a teacher and has 3 children of her own. Derek has severe learning difficulties and lives with Jane who looks after all his finances and personal needs and liaises with his care providers. Jane dies without a will owning property and savings worth £400,000 and under the intestacy rules her estate is split equally between Emily and Derek. Derek is not able to deal with his own finances and so cannot accept the money from the estate. Emily has to apply to the Court of Protection to be able to look after the money for Derek. In addition, because Derek inherits £200,000 he loses all his entitlement to means-tested benefits and has to pay for most of his own care until the money runs out.

These examples are meant to illustrate some of the problems that can arise when someone passes away without a will. Looking at it from a more positive perspective, by writing a will you can take control and ensure that your estate is dealt with in the way that you would want it to be. You can use your will to choose the key people who are going to deal with your estate for you and also who is going to inherit and under what conditions. You can provide guidance about your wishes in respect of funeral arrangements and personal possession. You can ensure that your loved ones are protected particularly minor children or vulnerable beneficiaries. You can allow step children and unmarried partners to benefit as well as excluding people from your will whom you don’t want to benefit.

Putting a will in place is an important record of your wishes and is something every adult should do. Please don’t leave it too late, you never know what is round the corner.

Rosie Wright
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Rosie Wright

Rosie’s background is a solicitor having worked in private practice for over 20 years. In 2017 Rosie set up her own company Brixworth Wills allowing her to focus on providing a bespoke service for those clients looking to obtain peace of mind. Rosie is able to assist clients putting wills and powers of attorney in place to ensure that a difficult situation is made as easy as possible for the client’s loved ones. Rosie is a non-practising solicitor and a full member of the prestigious Society of Trusts and Estates Practitioners demonstrating her expertise in this area.