Kate Wombwell – Quality Solicitors
Dying without a Will (intestate) could leave your family with a multitude of problems especially if you have young children.
If you own joint assets with your spouse or partner and you die, these assets normally pass by survivorship to the co-owner outside of your Will or the Intestacy Rules. For example,where there is a house owned as joint tenants or a jointly owned bank account the survivor will simply need to register the death with the Land Registry/bank.
However, if you have assets in your sole name and you die without a Will, the Intestacy Rules dictate who benefits from these assets and who handles the collecting in and distribution (the administration) of them. This will not necessarily be your spouse or partner as much depends on the value of the assets.
There have been changes in the Intestacy Rules in an attempt to keep in line with house prices and to increase the benefit for a surviving spouse/civil partner in particular. Where there is a surviving spouse/civil partner and no blood children of the deceased, that spouse/civil partner receives assets up to the value of £450,000 (the statutory legacy) along with personal effects. If there are surviving blood children of the deceased the spouse/civil partner receives the personal effects and a statutory legacy of £250,000. The balance of the deceased’s estate (if any) is then distributed in accordance with the Rules and can involve complex life interests.
An unmarried partner who is living with the deceased at the time of death still receives absolutely nothing under the Intestacy Rules (common law marriage is not recognized in law) and their only recourse is to make a claim against the deceased’s estate under the Inheritance (Provision for Family & Dependants) Act 1975; neither do stepchildren, so if the deceased has been treating a stepchild as their own and that child was dependant on the deceased at the time of death, their only recourse is via the same route. If that stepchild is a minor (under 18) they cannot make the claim themselves and an adult must be appointed to act on their behalf.
The above merely touches on the financial problems that can occur when someone dies without a Will and the time can be fraught with difficulties.
What if there are young children; who has responsibility for them?
If the surviving spouse/partner is the natural parent i.e. has parental responsibility or has adopted the child, there will be no problems but what if they are a step-parent? If you don’t have parental responsibility that child’s natural parent will have rights and the family could be split up unless there are exceptional circumstances. For this reason alone the person who died should have made a Will appointing their spouse/partner guardian of that child.
Your Will can therefore make provision for all the members of your family whether you are married/in a civil partnership or not, cohabiting, have young children of your own, stepchildren or, indeed, a wider family. You can:-
- Appoint executors & trustees to manage your assets – perhaps to hold them in trust until your children are mature enough to have them.
- Appoint a guardian for young children
- Make provision for your spouse/civil partner
- Make provision for your partner (remember they do not inherit under the Intestacy Rules)
- Make provision for stepchildren or your partner’s children if they live with you
- Make provision for other members of your family balancing this with the above
A Will is an important document and your mind will be at rest knowing you’ve done the best you can for your family.
One final word of warning – seek proper legal advice from a qualified lawyer and do not attempt to make a Will yourself!
Kate Wombwell is the Head of Private Clients at Quality Solicitors
W: http://www.fjg.co.uk
T: 01206 217585
The views in this article are those of the contributor and do not necessarily represent those of Fiducia Wealth Management Ltd. If you would like copies of any of these articles please contact our Gordon Kearney via email at [email protected] or via the post at Fiducia Wealth Management, Dedham Hall Business Centre, Brook Street, Dedham, Colchester, CO7 6AD.
