Why Should I Make a Will? The Effect of the Intestacy Rules

If you die without leaving a will, you are known as dying ‘Intestate’ and your estate will be distributed according to what are known as the ‘Intestacy Rules’. There are many issues with Intestacy Rules, from the fact that they have no provision for unmarried partners to the possibility that your estate might end up passing to family members you barely know or have never even met.

It can be morbid to think about what will happen when you pass away, but too often do we come across people who were thinking of making a will but never got around to it before they died.

If you die without leaving a will, you are known as dying ‘Intestate’ and your estate in England and Wales will be distributed according to what are known as the ‘Intestacy Rules’. The Intestacy Rules outline the categories of family members who will inherit your estate, depending on who survives you. The rules can be somewhat convoluted and can lead to disputes.

The following are some examples of issues with the Intestacy Rules which highlight the importance of making a will:

1. No provision for unmarried partners

An unmarried partner is not entitled to inherit under the Intestacy Rules at all, therefore if you want to provide for your unmarried partner after your death then you can only do so by including them in your will.

2. Complicated family trees

If you pass away without any close relatives, genealogists may need to be instructed to trace your family tree and contact all of the beneficiaries, which can be a costly and time-consuming exercise.

Furthermore, your estate could end up passing to family members you barely know or have never even met.

3. Unsuitable use of inheritance tax allowances

A will can be an important tool when it comes to tax planning, but the Intestacy Rules do not take this into consideration.

For example, if you pass away leaving both a spouse or civil partner and children, and your estate is over £270,000, then part of your estate will pass to your children. The amount of your estate passing to your spouse or civil partner will be exempt for inheritance tax, but any amount passing to your children will not be. This could mean that you use up some or all of your available inheritance tax allowance, and inheritance tax may be payable on your death.

Any unused inheritance tax allowance you have left will be available for your surviving spouse or civil partner to use on their own death. The more of your inheritance tax allowance that is used up on your death, the less there will be available to transfer to your surviving spouse or civil partner.

4. No consideration of individual circumstances

Perhaps you have circumstances which can only be met by drafting a more complex will involving, for example, a trust. Perhaps you are estranged from certain family members who might otherwise benefit under the Intestacy Rules. Or perhaps you merely want to specify exactly who should look after your minor children, or even your pets, on your death. The Intestacy Rules do not consider your own individual circumstances and instead treat everybody who has not made a will the same.

The reality is that making a will is the only way you can ensure that your wishes will be fully carried out after your death. Life can be unpredictable; therefore, it is worth thinking about at least getting a simple will in place to start with.

Your will can be updated as many times as you want during your lifetime, so long as you have capacity.

If you wish to discuss making or updating a will, then please do not hesitate to get in touch with one of our private client specialists.

Written by David Chandra and Megan Portch (Partner and Solicitor)

For any enquiries regarding wills, trusts and probate, contact us on 020 3820 3465 or email info@judge-priestley.co.uk