Under the law of England and Wales, if you die without writing a valid Will, your estate will be distributed in accordance with strict intestacy rules. Intestacy covers situations where there is no Will at all, however it can also come into effect if there is a Will in place, but it has been deemed invalid for one of a number of potential reasons. These include, for example, where the Will is unsigned or not dated correctly, or was not witnessed by two independent witnesses.
A Will may also be automatically cancelled because the person married or entered into a civil partnership after making the Will. In some situations, the Will simply cannot be found, and there is always the risk if a Will has not been kept somewhere safe, that it is found but destroyed by someone who does not like its terms. In these circumstances, the rules of intestacy will be applied and the law will decide, rather than you, who inherits your estate.
Making a Will gives you control over how your estate will be distributed after you pass away. It ensures you can provide for your loved ones’ needs after you have gone and ensures that those you care most about will have a share in your assets and possessions. You can leave gifts to specific people, as well as make donations to charitable causes, all of which can give you peace of mind that your affairs are in order when the time comes and your wishes will be honoured.
Intestacy can often mean your loved ones suffer financially further down the line and it can put strains on family relationships if disputes arise surrounding who should inherit. And it can sometimes mean your estate is passed on to someone you would not have chosen to inherit from you.
The absence of a Will can cause serious problems for your loved ones after your death, at an already difficult time. It can also lead to many months tied up in lengthy, costly court battles for your family if you do not make a Will clearly stating what you would like to happen to your estate when you die. Even when there is no dispute between family members, the absence of clear instructions on what should be done with an estate can lead to a drawn-out process of determining what is in the estate, and then working out how to distribute it.
When a person dies and their estate is valued over the ‘nil band rate’ for Inheritance Tax (currently £325,000) it will be taxed at a rate of 40 per cent. With careful planning, you can arrange a Will in such a way that Inheritance Tax outgoings are minimised or even avoided altogether, ensuring you pass on your inheritance to the next generation without them losing out to the taxman.
Without a Will, you can’t be in control of who deals with your estate on your death. Usually in this situation, the court will appoint an executor – normally a beneficiary and close family member or friend. It is highly recommended, however, that you appoint someone yourself that you know to be trustworthy and honest (because they will be dealing with your entire estate), as well as someone who is organised as they will be required to keep accurate accounts of your estate. Often people appoint a close family member or a close friend as executor, however, it is also quite common to appoint a professional executor such an accountant or solicitor. You can read more about how to choose an executor, here.
If you have children, it is highly recommended you write a Will so that in the event you die before they reach maturity, they will be cared for by someone you know will do a good job. Failure to appoint a guardian for your children would mean that the court would need to do so on your behalf. While the courts always aim to rule in your children’s best interests, they do not always get it right in these cases and they may choose someone you would not have wanted.
If you have a partner but you are not married or in a civil partnership, your partner cannot inherit from you under the rules of intestacy. It does not matter whether you and your partner lived together or even have children together; the law makes no provision for them.
Similarly, if you have step children who you would like to inherit from you, you must make a Will. This is the only way you can be sure they will receive any of your estate and prevent them losing out when you die.
Another scenario which can cause distress and dispute after a person has died is when the deceased was going through divorce proceedings at the time of death. Without a decree absolute or a Will stating otherwise, the rules of intestacy dictate that the surviving separated spouse inherits the deceased’s estate, even if that was not the deceased’s wish.
To prevent all of these situations from occurring, you must make a Will.
