It is a well-worn statistic that as many as 2/3 adults in the UK have not made a Will. There are many reasons why someone may not make a Will – they feel they have nothing to leave, they ‘know’ who will get their estate anyway, their situation is complicated and they don’t want to have to think about it, they find it difficult to talk and think about what happens after they have died and so on.
But what are the consequences of dying without a Will? The legal position is clear – a set of rules called the Intestacy Rules will divide up your estate between your spouse/civil partner and your closest living blood relatives. End of story. Or is it? What about cohabitees, stepchildren, friends, charities?
The Intestacy Rules by their nature have to be objective, neutral and enable beneficiaries to be identified with certainty. This means though, that they cannot know and make provision for each individual’s personal preferences and choices for their estate.
The starting point in UK law is that of complete testamentary freedom – you can leave your estate to whomever you wish. So why not make a Will to exercise that choice?
Take these examples –
Alan and Barbara are married and have no children. Alan owns the family home and does not have a Will. Who inherits on his death?
On the basis of these facts, Barbara, as surviving spouse, would inherit the estate, with there being no children.
With a slight tweak – Alan and Barbara live together but are not married. Neither of them have any children. Alan owns the family home and does not have a Will. Who inherits on his death?
This time, Barbara will have no rights to inherit. She is not Alan’s spouse. Under the Intestacy Rules, the first beneficiaries would be Alan’s parents, and if they are not alive, his brothers and sisters. Barbara may be able to make a claim on the estate, if she and Alan have been living together for more than 2 years, but that puts Barbara to a lot of stress, time and expense.
And a further tweak which in fact is a scenario we have seen more than once – Alan and Barbara live together but are not married. Barbara has a 4 year old child (Chris) whom Alan has helped bring up for the last 3 years and provide for. They have an 18 month old baby (David) together. Alan owns the family home and as the main earner most of the bank accounts are in his name as well. Alan does not have a Will. Who inherits on his death?
Under the Intestacy Rules, David is the only person entitled to Alan’s estate. Barbara and Chris have to make claims if they want to be included in the estate because David, being a minor, cannot give legal consent to them having a share. Everyone has to be separately represented because everyone’s interests are slightly different. Any proposed solution to the claims has to be agreed by Court because David is under 18 and the solution will mean he receives less than he would originally have done.
Legal claims cost time and money and the process will likely be extremely stressful for Barbara while it is being sorted out, both financially and emotionally. It would not have taken a particularly complex Will for Alan to make sure that everyone was provided for.
These scenarios only scratch the surface of the problems which can arise and show that it really is so important to consider your position and what happens to your estate on death. Understanding what happens if you do not have a Will is the first step. Act now to ensure that your family and loved ones are provided for in the way that you want them to be by making or updating your Will.
For more information please contact Kathryn Caple on 01283 526200 or email Kathryn.caple@elselaw.co.uk.