Where There’s a Will…

A couple of weeks ago, our attention was drawn to a survey conducted by Exizent. The survey found that 23% of people die without a Will and most do not leave their affairs in order; 71% of solicitors said that at least half of their clients died without putting their affairs in order; and 95% of probate professionals rely either entirely or somewhat on information from their clients to verify assets and liabilities.

As someone who deals with the estates of those who have sadly passed away, this does not come as a huge shock, albeit I’m sure it comes as a shock to the general public. After all, who wouldn’t ensure their affairs are in order?

Ultimately, there can be countless reasons an individuals’ affairs are not in order – an unforeseen change in personal circumstances, a sudden and unexpected death early in life or simply not knowing where to start.

The process of making a Will often seems like something that can be put on the back burner while immediate priorities are dealt with. Unfortunately, that approach fails to appreciate the reality of what can happen when an estate is not left in order.

In recent months, our Wills and Probate team have had to navigate the real-life consequences of estate’s not being left in order.

In one instance, a husband and father passed away suddenly without a Will. He was the owner and director of a successful family company valued at over £2 million, his wife held 50% of the shares of the business. The couple have two children, both under the age of 18. Luckily the marital home was held as joint tenants so his share of the property passed to his wife. However, his shares in the family company must be dealt with under the Intestacy Rules. The Intestacy Rules are legislative provisions that dictate how the estate of someone who dies without a Will is to be dealt with. Under the provisions the gentleman’s wife will receive all personal chattels, a statutory legacy of the first £270,000 of capital assets of the estate and a life interest over half of the residuary estate. The children will then inherit the remaining half of the residuary estate including the shares when they turn 18. This is approximately £375,000 divided between the two children.

Whist this case was amicable and one that all parties were content with, it could have caused serious problems. Leaving this amount of money to his young children likely would not have been in the deceased’s plans and would not have featured in his Will. In a Will you can specify an age of inheritance that is higher than the statutory age of 18. Meaning that if you wished your children would not receive their inheritance until they were a more mature age such as 21 or 25.

Not leaving a Will can also cause problems for cohabiting couples. One such instance arose when an individual who was cohabiting with his girlfriend suddenly passed away. The couple have one son together and the deceased’s girlfriend has a daughter from a previous relationship. The deceased took care of all of the family finances and the family home was in his sole name.

As the couple were not married the girlfriend is not eligible for the same spousal entitlements available to married couples. This means that she will not inherit anything under the provisions of the Intestacy Rules. The sole beneficiary of the estate is in fact the deceased’s son who is a minor (under 18).

Instead, the deceased’s girlfriend and her daughter will need to make a claim for provision and maintenance from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. As the deceased’s son is a minor he does not have the legal capacity to agree to any variation of the estate and instead the approval of the Court is needed before any arrangements can be crystallised.

The only way to achieve this is by ensuring that each party has their needs properly preserved and therefore they must each be represented by separate legal parties. This avoids a conflict of interest arising, however, it does mean three separate sets of Solicitor’s fees will be incurred.

While we are hopeful that this case will be resolved amicably and that there will be no disputes over the estate, the whole episode will take a long time to settle and the costs incurred will be significant.

In short, please make a Will. If it seems like a hassle or an irrelevance to you, do it for your family. It’s impossible to tell what is around the corner and while it’s natural to think we are invincible, the reality is that we are not.

If you find yourself reading this and have yet to make a Will, please get in contact via the contact details below. Give yourself peace of mind, but more importantly give your family peace of mind.

If you would like to get in touch with one of our solicitors on debt recovery, contact Kathryn Caple via email on kathryn.caple@elselaw.co.uk

Share This

Copy Link to Clipboard