INTESTACY - disadvantages of not making a Will
Why you should make a Will
By making a Will you can decide exactly who gets which assets from your estate - ie. property, money and personal belongings (including pets) and also avoid unnecessary arguments amongst family members or relatives that might arise if your wishes are unclear.
If you die without having made a Will the Law of Intestacy will govern how the assets of your estate are to be distributed and this may not be in the way that you would choose. (See the explanation below.)
Making a Will also allows you to take steps to reduce (or even eliminate) the burden of Inheritance
Tax. Some gifts can be made without Inheritance Tax being charged on them (for instance, gifts to your spouse, or Civil Partner, or to charity). This may enable you to provide more for the people you want to benefit, rather than the taxman. (See our additional information sheets enclosed.)
A Will also allows you to appoint legal guardians for your minor children and to set up a trust for your children's inheritance. This is particularly useful when making long-term financial provisions for young children or those with
special needs.
What happens if you do not make a Will
If you die without having made a Will you are said to be "intestate". This means that your estate will be distributed amongst your close relatives, in accordance with the Law of Intestacy (see below). If there are no close relatives
(as defined by the rules) the whole estate will go to the government (the Treasury).
If you have relatives but do not make a Will, your wishes may not be followed and your estate may pass to people whom you do not wish to benefit. This is why it is vital to have a legally valid, up-to-date Will.
You may think that if you are married (or in a Civil Partnership), everything will pass to your spouse (or Civil Partner) automatically, but this is not always the case.
The basic rules for distribution of an estate on intestacy depend on your personal circumstances as follows:
You are lawfully married (or in a Civil Partnership) and have no children from this union or a previous union and no other close relatives.
If your estate is worth less than £250,000 (including your home) then your spouse (or Civil Partner) gets everything.
If your estate is worth more than £250,000 and you have no other surviving relatives (such as, brothers/sisters/grandparents/
You are lawfully married (or in a Civil Partnership), have no children, but do have parents/brothers/sisters/
If your estate is worth more than £450,000 then your spouse (or Civil Partner) would get
£450,000, plus half the balance. The remaining half goes to the other relatives in this order of priority (depending on who survives you) - parents; brothers/sisters; half-brothers/sisters; grandparents; aunts/uncles; spouses of aunts/uncles.
You are lawfully married (or in a Civil Partnership) and have children .
If your estate is worth less than £250,000 (including your home) then your spouse (or Civil Partner) gets everything.
If your estate is worth more than £250,000 then your spouse (or Civil Partner) would get £250,000 and the remainder is divided into two halves. One half goes to your children, the other will be held by your administrators (personal representatives - see below) upon trust to pay the income from it to your spouse (or Civil Partner) for the rest of his or her life, after which that half then goes to your children as well. Should any of your children die before you then their children would be entitled to take their parent's share.
You are not lawfully married (or in a Civil Partnership) but have children.
Your estate will be shared between the children. Should they die before you then their children would take their share.
You are not lawfully married (or in a Civil Partnership), have no children, but have parents brothers/sisters/grandparents/
Your estate will be shared equally amongst them in this order of priority - parents; brothers/sisters; half-brothers/sisters; grandparents; aunts/uncles; spouses of aunts/uncles. If any of these have predeceased but left living children then the children will take their parent's share.
If you are not lawfully married, and have no other relatives.
Your estate will go the Crown.
It should be noted that these rules on intestacy do not recognise "common law" partners,
and that "children" includes natural, adopted and illegitimate children, but excludes step-children.
Problems for those left behind following a death where there is no Will
- Your relatives will not be sure whether a Will has been made or not and they will have to spend time and money making searches to try and locate one.
- Once they are satisfied that there is no Will, the relative or relatives legally entitled to be appointed as Administrator(s) of your estate will have to apply to the Court in order to be officially appointed in such a role, in order to gain the legal right to deal with the estate. (By contrast, if you make a Will your appointed Executors merely have to apply to the Court for a Grant of Probate, which is a much quicker and easier process to complete.)
- Because of the delay in releasing the assets of your estate, relatives may have to find the funds to pay for funeral expenses. They may also have to pay Inheritance Tax initially before obtaining re-imbursement from the estate.
- If legal guardians have not been appointed and the surviving parent of a minor child or children has died, your relatives will need to deal with the appointment of suitable guardians by making application to the court, which is costly and time consuming.
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