Intestacy: Why making a Will matters
Thinking about what happens after you die is never easy, but putting it off can leave your family with uncertainty, delay and sometimes outcomes you would never have chosen. If you die without a valid Will, the law decides who inherits your estate. This is known as dying intestate.
If you don’t yet have a Will, or have one that might no longer be valid, now may be a good time to take action. August is designated as national Make a Will Month in England as a reminder to everyone that putting their personal legal affairs in order is something that shouldn’t be neglected.
What is intestacy?
Intestacy is the legal term used when someone dies without leaving a valid Will. It can also apply where a Will exists but does not deal with everything the person owned, creating a partial intestacy. Where there is a partial intestacy, the provisions made in the Will are applied to the items which are covered and those which are not covered become subject to the intestacy rules.
Where there is no Will, the whole estate will be subject to the intestacy rules rather than being distributed according to the deceased person’s wishes. The rules may be clear, but they are not personal. They do not take account of promises made during life, close friendships, unmarried partners, stepchildren who have not been adopted, or particular family circumstances unless those people fall within the strict legal categories.
How do the intestacy rules apply to your money and assets?
The intestacy rules apply to assets that form part of your estate at the time of your death. This can include money in sole bank accounts, property held in your sole name or as tenants in common, investments, personal possessions, business interests and anything else that does not pass automatically by another route.
Some assets may pass outside the intestacy rules. For example, jointly owned property held as beneficial joint tenants will usually pass automatically to the surviving joint owner, and some pensions or life policies may currently be governed by nomination forms or trust arrangements. This is one reason why proper advice is so important: what you think you own, and what your estate can actually pass on, may not be the same thing. There are also changes to the rules relating to pensions and inheritance, scheduled to come into effect in April 2027, which may impact on your planning depending on your circumstances.
In England and Wales, if you die leaving a spouse or civil partner and no children, your spouse or civil partner will usually inherit the whole estate passing under intestacy. If you leave a spouse or civil partner and children, the spouse or civil partner receives your personal chattels, a statutory legacy (currently £322,000) and half of the remaining estate, with the other half passing to your children. For these purposes, children include biological and adopted children but not step-children. If the estate is worth less than £322,000 (currently), the whole estate will pass to the spouse.
Where there is no spouse or civil partner, the estate passes down a strict order of relatives. If there are children, this is still relatively straightforward. If there is no spouse or civil partner, and no children, then the parents are next in line to inherit. This is potentially a planning point for younger unmarried home-owners with no children to consider. If you have built up equity in your property and something happened unexpectedly to you, have you considered what would happen to your property? If there are no parents, then siblings, and their children, are next in line to inherit.
If no qualifying relatives can be found, the estate may ultimately pass to the Crown. That is rarely what anyone would have written down as their preferred outcome.
Why risk can arise
The most common misunderstanding is that a long-term partner will automatically inherit. They will not, unless they are married to you or in a civil partnership with you, or unless assets pass to them outside your estate. The phrase ‘common law spouse’ is often used in everyday conversation, but there is no such thing in legal terms and cohabitees do not have any automatic inheritance rights under the intestacy rules.
Another difficult area is blended families. Children from a previous relationship, adopted children, stepchildren, second marriages, family businesses and jointly owned homes can all make the position more complicated. Without a Will, the result may cause tension between the people you would most wish to protect.
When should you make a Will?
The short answer is, as soon as you have people or assets you care about.
You should make a Will if you buy a home, marry, enter a civil partnership, separate, divorce, have children, start a business, receive an inheritance, acquire significant savings or investments, or simply want to choose who deals with your estate. A Will is not only for later life. It is a practical document that gives structure and certainty when your family may need it most.
A well-drafted Will allows you to appoint executors, name guardians for young children, leave gifts to family, friends or charities, plan for tax where appropriate, and set out how particular assets should be dealt with.
Who does a Will protect?
A Will protects the people who depend on you, and it can also protect the people who would otherwise be left dealing with uncertainty. For many of us, this means a spouse or civil partner, children, grandchildren, an unmarried partner, stepchildren, elderly relatives, friends, carers or charities.
It also protects your intentions. If you want one person to inherit a particular item, if you want to make unequal provision for sensible reasons, or if you want someone you trust to administer your estate, a Will gives you the opportunity to say so clearly.
Just as importantly, a Will can reduce the chance of dispute. It may not prevent every disagreement, but clear professional drafting often gives families a better route through a difficult time.
Can an existing Will be invalidated?
Yes. A Will is not something to write once and forget forever. In England and Wales, marriage or civil partnership usually revoke an existing Will unless the Will was made in contemplation of that marriage or civil partnership. Divorce or dissolution does not revoke the whole Will, but it can affect gifts to a former spouse or civil partner and appointments made in their favour.
A Will may also be challenged or treated as invalid if it was not signed and witnessed correctly, if the person making it lacked capacity, if they did not know and approve its contents, or if there was undue influence or fraud. Even where the Will remains valid, it may no longer reflect your circumstances if your family, finances or wishes have changed.
For that reason, it is sensible to review your Will regularly and after any major life event.
How can Fraser Dawbarns help?
Fraser Dawbarns can help you make a Will that reflects your wishes, your family and your assets. Our Wills and Estates team can talk through your circumstances, explain your options in plain English and prepare a professionally drafted Will designed to give you and your loved ones peace of mind.
We have Wills and estate planning specialist lawyers in each of our offices, in King’s Lynn, Downham Market, Wisbech, March and Ely so you can either contact us at any of our offices, or complete our enquiry form and we will get in touch.
How To Contact Us:
To contact a member of our team, you can fill in our online enquiry form, email info@fraserdawbarns.com, or call your nearest office below. If you’d like to speak to a member of our team at one of our offices across Norfolk and Cambridgeshire, visit our offices page.
Wisbech: 01945 461456
March: 01354 602880
King’s Lynn: 01553 666600
Ely: 01353 383483
Downham Market: 01366 383171
This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.