Creating a will gives you the opportunity to choose what happens with your estate following your death.
Whether you have children to provide for, a charity whose work you’ve always championed, or a wonderful pug who could do with a lifetime supply of treats and chew toys, you have control over what happens to your estate.
Their estate is divided in accordance with what are known as Intestacy Provisions.
These govern who inherits the estate and how much. For example, if you have a spouse/civil partner and children then your spouse would have what is called a Statutory Legacy (which has just been raised to £322,000) and half of the remaining estate. Meanwhile your children would receive the other remaining half of the estate divided into equal shares.
When a person dies without leaving a will, the Intestacy Rules apply to assets that he or she owned solely. The word ‘solely’ is important there, as the situation quickly becomes more complicated when the person owns joint assets. Normally these would pass via survivorship to whomever is the surviving co-owner. This is one of the key reasons why it is so important to make a will.
To illustrate this, if you own land you will need to take into account whether the land is held as ‘Tenants in Common’ or as ‘Joint Tenants’. If it’s the former, then the land would form part of the estate and would pass normally under Intestacy Provisions. If it is the latter, then the land would pass to the surviving co-owner.
From my point of view as a solicitor, it is always preferable to make a will even though in many cases your will would mirror what would happen had you not made one. It is particularly important to do so if you are unmarried but living with your partner and children.
Should you die, your children would inherit but not your partner who then would have to make a claim against your estate for provision to be made to them. Both Charlotte Pegman and I have seen many cases where this has happened, where it could have easily been avoided. Whilst the situation can often be corrected by simply making a Deed of Variation where the beneficiaries rearrange how the estate is inherited, it can also lead to lengthy, complex and expensive litigation.
If you have not made a will, the Intestacy Provisions also govern who will deal with your estate. Normally, it would be your spouse, your children or issue. If you make a will you can decide who your executor or executors would be and they will deal with your estate in accordance with the terms of the will. Being an executor is a very practical job which also involves dealing with figures and paperwork. You may also have to navigate assisting bereaved family members and friends and this can be particularly problematic if there is any tension already, such as where the person has been married twice or has several children from different partners. Naturally then, it is important to choose the right person to take on that responsibility for you.
If you have minor children (under the age of 18) you can appoint guardians in your will. Any such appointment would only take effect if there is no one left with parental responsibility on your death. Did you know that it is possible to appoint a guardian without making a will? This is something that our West London family solicitors can assist with or we can simply put the appointment of guardians as a clause in your will.
Not only is it important to make you aware of the recently introducing rise in Statutory Legacy, but another important aspect of dying is the fact that your estate may have to pay inheritance tax. If you want to read more about this subject please start from here.
Having legal framework that governs what happens to your estate if you die without making a will is a great safety net. However, Charlotte, Ana, Aisling, Sumer and I have all dealt with cases where we think if only the person had made a will the administration of the estate would have been much more straightforward. Having a probate lawyer by your side can make all the difference.
Please do get in touch to get further information about wills, inheritance tax or guardianships. Equally, if you have young children or any other issue connected with this area of law, please do contact either:
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