We all have a Birth Certificate, many of us have a Marriage Certificate, and we will all inevitably at some point have a Death Certificate.  My question is, “where is the valid Will to go alongside the Death Certificate?” 

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Many people do not even want to think about making a Will, perhaps unconsciously believing that if they do not do anything to prepare for death this means death will never come for them. 

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There is no legal requirement to have a Will but if you don’t the government will decide where your assets are distributed when you die, not you.  That is not usually where you would have chosen.  It could even all go to the state!  What is also clear is that any Inheritance Tax liability will probably be higher if you do not have a Will. 

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Rules of Intestacy 

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If you die without leaving a Will, or if your Will is not legally valid for any reason, your estate is divided according to the “rules of intestacy”.  An amazing number of Wills we check for people are not legally valid, even though many have been prepared by solicitors, so in those cases the rules of intestacy will apply even though they had written a Will. 

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If you are married, the first £270,000 goes to your spouse.  50% of the remainder of the estate also goes to your spouse, and your children inherit the remainder equally. 

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If you are not married, then none of your estate passes to a co-habiting partner. 

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Example - Intestate Unmarried Couple

 

Adam Clark and Marion Lewis lived together for many years.  They viewed themselves as a married couple who had simply never got around to the formalities of a marriage ceremony and obtaining a legal certificate of marriage.  They also never got around to writing Wills. 

Adam bought the house in which he and Marion lived before he met Marion, and it was therefore just registered in his name. 

When Adam died, Marion assumed she would inherit their home.  When someone dies without a valid Will their estate follows the rules of intestacy.  In this case, their children inherited the house along with all Adam’s other assets.  Marion inherited nothing, as the rules of intestacy do not recognise any rights of inheritance between co-habiting couples. 

Marion had a legal right to challenge the distribution of the house to the children as she had lived in the house with Adam for over two years, but this action would be costly and there was no guarantee she would win it.  Instead she just accepted the situation, living in a house which could no longer be regarded as even partially belonging to her.  She remained reliant on the goodwill of the children to allow her to continue living there and no longer had the financial security she and Adam had always assumed would automatically be hers. 

This problem could easily have been avoided if Adam had written a Will which stated his house would pass to Marion on his death, or at least that she had the right to live in it until her own death. 

If, as you read this, you recognise this as being similar to your situation, or if it simply reminds you that you are not comfortable with your situation, please contact us urgently.  Trying to help clients who have lost a large part of their estate at the time as losing their partner is one of the most harrowing parts of our profession, and is something that could easily be avoided if they consulted with us before it happened. 

Example - Intestate Married Couple, Loss of Home 

Malcolm & Barbara Hobbs never bothered to write Wills as they were legally married and therefore believed that they would each inherit the other’s estate on death. 

They have the following assets: 

Home £640,000 

Investments   £20,000 

Cash   £10,000 

Furniture & Sundry Possessions   £30,000 

Total Estate £700,000 

They each own half of the assets (including their home, which is owned as “Tenants in Common” and therefore 50% each).  They therefore each have an estate of £350,000. 

When Malcolm dies, as he has not written a Will the first £310,000 of his £350,000 estate goes to Barbara.  This is less than his £320,000 share of their home.  Even if Barbara gives her children all the investments and cash she received from Malcolm there is still a shortfall.  The reality is that she needs all of this anyway in order to maintain her standard of living. 

So Barbara is forced to sell the marital home so that she can pass to her children the amount she is legally required to give them.