Making a Will vs the Rules of Intestacy

If the worst should happen, and someone dies without making a Will, their estate will fall under the Rules of Intestacy. However, while the rules are intended to be fair to all, they are unlikely to suit everyone’s circumstances. There are many risks involved in not making a Will, and one of the primary reasons for making one is that that you get to control what happens with your estate and who benefits.

A summary of the Rules of Intestacy are as follows:

• If you are married or in a civil partnership, then your spouse/civil partner automatically inherits your estate. However, if your assets are worth more than £270,000, and you have children, then anything above £270,000 will pass 50/50 between your spouse/civil partner and your children. Please note this does not include assets that pass automatically by survivorship to your spouse/civil partner, i.e. joint bank accounts and property owned as ‘joint tenants’.
• If you are unmarried and have children, then everything passes to your children, and failing them grandchildren.
• If you are unmarried and have no children or grandchildren, then everything passes to your parents, and failing them to any siblings, and failing them to nieces and nephews, and failing them to cousins.

Here I outline some important reasons for making a Will rather than relying on the Rules of Intestacy.

1. Protecting your Partner

If you are unmarried, but in a relationship, then your partner is not entitled to inherit under the Rules of Intestacy. This could mean that your estate passes to other family members instead of your partner. For example, if you owned a property together, depending on how the property is held, this could lead to your family owning your share of the property, rather than your partner.

2. Children inheriting whilst minors

As children are automatically entitled to inherit under the Rules of Intestacy, this could lead to your estate passing for the benefit of your children while they are minors. For example, you may have a partner and have children together, but under the Rules of Intestacy, your estate will pass to your children rather than your partner. If your children are minors, this could cause complications in your estate.

3. Claims against your Estate

If you rely on the Rules of Intestacy you may inadvertently open up your estate for claims under The Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. If your spouse/civil partner or partner, or children/stepchildren are financially dependent on you, and they are not adequately provided for under the Rules of Intestacy then they could bring a claim against your estate. This may involve costly litigation and will cause delays to the administration of the estate.

4. Appointing Executors

Making a Will allows you to name individuals who you would like to deal with your estate, i.e. collect in your assets, pay any debts and distribute your estate in accordance with your wishes. Under the Rules of Intestacy, you will be relying on someone to nominate themselves for this role and this can only be a person from a certain category, i.e. someone entitled to inherit under the Rules of Intestacy. They will not have any power to deal with your estate until Letters of Administration are obtained, as they have not been appointed under a Will. This can cause unnecessary complications and delays. 

5. Ensuring your wishes are met

If you rely on the Rules of Intestacy, someone may inherit from your estate that you didn’t want to, and likewise, someone may not inherit that you wanted to.

For example, only biological children (which includes adopted children) can inherit under the Rules of Intestacy. As such, any stepchildren will not inherit, unless they have been formally adopted. Again, this may give them the ability to bring a claim against your estate where reasonable financial provision has not been made.

Also, if you are estranged from any family members, then they could also inadvertently inherit under your estate.

You may also like friends or charities to inherit under your estate, and this will not be possible under the Rules of Intestacy.

6. Creating Certainty

By having a Will, you can also include other wishes, i.e. in relation to your funeral and personal possessions. You can also include Trusts in your Will for protection purposes, i.e. for vulnerable beneficiaries, young children or partners which is not possible under the Rules of Intestacy.  

Having a Will creates certainty and ensures that those you leave behind know your wishes and can follow them as best as possible. The Rules of Intestacy create uncertainty and do not give your loved ones a roadmap of your wishes to follow.  

The figures cited in this article are accurate as at the date of this article and may be subject to change in the future.

If you would like to discuss putting in place a Will or reviewing your existing Will to ensure that it still reflects your wishes, please contact Shanade Smith (Shanade.smith@bpe.co.uk 01242 248221) or another member of the Private Wealth team.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.