This is a quandary that can come up for many people, including those who are childless or child-free, those who are estranged from their children, those whose children have died before them, or those who have no close family members living. It is hard to decide whom to leave your assets to in these scenarios, and for many the easiest thing is to do nothing. However, doing nothing is the worst thing you do in this regard.
If you die without leaving a will, your estate will be 'intestate'. This means that the law of intestacy will dictate whom your assets will pass to and could produce an undesirable result.
What happens to my estate if I die without a Will?
If there is a spouse or civil partner and children, then the spouse or civil partner will take the first £322,000 of the estate plus half of the remainder of the estate and all of the personal chattels. The other half of the remainder will pass to children or their descendants.
Where there is a surviving spouse or civil partner but no children, the surviving spouse or civil partner will take the entire estate. In turn, their will or the rules of intestacy will then dictate where those inherited assets pass on their death which could also produce an undesirable result.
► Find out more about What happens if there is no Will and the Rule of Intestacy by reading this Blog.
Do Cohabitees benefit under the Rules of Intestacy?
The Rules of Intestacy are clear in that, where there is no Will and a person dies intestate (ie. without a Will), a cohabitee will not inherit anything.
Where there is no spouse or civil partner but there are children, they or their descendants will inherit your entire estate. This remains the case even if you haven’t seen your children/grandchildren for years or ever.
What if I die without a Will and I have no spouse, civil partner, and no children?
Where there is no spouse or civil partner and no children (or any descendants of your children), the pecking order is as follows:
- Parents, but if none;
- Brothers and sisters (or their descendants), but if none;
- Half brothers and sisters (or their descendants) but if none;
- Maternal and paternal grandparents, but if none;
- Maternal and paternal aunts and uncles (or their descendants), but if none;
- The Crown.
Again, this could produce an undesirable result. Assets you have worked hard to amass could pass to relatives you do not wish to benefit. They may pass to relatives you do not even know, resulting in the need to instruct a genealogist to trace them, all of which takes time, will delay the administration of your estate, and cost money.
Whilst the decision as to who to leave your assets can be hard in the scenarios outlined above, do keep in mind that the will you make now may not be the will in place when you die. As your circumstances change, so can the terms of your will. If you do not want certain family members to inherit, there may be other family members you would prefer to benefit or maybe friends or charities or maybe a combination of all of these. A ‘holding’ will may be better than having no will at all.
What is a Holding Will?
A holding will is a temporary will that a client may make to tide them over until they are in a position to make what they may consider to be their final will. A person may need to have a will, or update an existing will but may not have had time to weigh up the options open to them so rather than doing nothing, they may choose to make a holding will.
One example of when a holding will may be required is if a client is getting married but are undecided as to what provision to make for their spouse, particularly if it is a second or third marriage. They may choose to update their current will to make it in contemplation of their marriage to ensure that their will is not revoked by that marriage but with a view to making another will after their marriage and once they have had the opportunity to carefully consider the options open to them. Another example may be where a client has no will and but can’t decide who to leave their assets to so rather than doing nothing until they have made their mind up, they may prefer to draw up a holding will leaving their estate to, for example, a charity and/or a friend as they may find that preferable to allowing the intestacy provisions prevail.
Who should I appoint as executor to my Will?
It is important to still make a will even if you are happy for your estate to pass in line with the rule of intestacy as outlined above as doing so enables you to appoint an ‘executor’. An executor has authority to deal with your estate from the date of your death meaning that that your estate can be administered more efficiently.
If you do not have a relative or friend who you trust to appoint as executor, or is up to assuming that role, you could appoint a solicitor to act. Yes, a solicitor will charge for acting as executor, and that may put you off, but it is an option, and it may be a better option than allowing the law to dictate who should act if you don’t make a will.
If you do not have a will, the person who deals with your estate is called an ‘administrator’. The law states who that person is to be and it may be someone who you would not have chosen to act. In addition, an administrator’s legal authority to deal with your estate flows from the date on which the Grant of Representation has been issued. At time of writing, it is taking the Probate Registry up to 16 weeks to process straightforward probate applications. Applications where the deceased died intestate can take longer meaning that the administrator’s ability to deal with certain issues may be delayed.
What is a Grant of Representation?
A Grant of Representation is document by the Probate Office that gives the person named the authority to administer the estate and other assets of a deceased person. It is a document that proves that the person handling the deceased's assets has the legal right to do so.
Making a will gives you control. It gives you peace of mind. Don’t let indecision produce an undesirable result.
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About the Author
Sarah qualified as a solicitor in 1992. After almost 15 years of specialising in family law, she decided to change direction and retrain in Private Client. She moved to Hartley & Worstenholme where she remained for 15 ½ years before taking up her current role as Associate Solicitor at Thornton Jones. Sarah brings with her a wealth of experience in non-contentious private client matters.
Outside work, Sarah enjoys gardening, spending time at Yorkshire Sculpture Park, classical music, and holidaying in sunny climes whenever she can.
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