September 08, 2018

The importance of a will

Death isn’t an easy topic to discuss. But if you’ve ever had to deal with someone’s estate without a will to refer to, it’s a conversation you’ll wish you hadn’t overlooked. When someone dies without leaving a valid will in England and Wales, their estate (property, money, belongings etc.) must be shared out according to the rules of intestacy.

These rules don’t account for the many different family dynamics in the UK. For example, it’s not uncommon for situations to be complicated by multiple marriages, divorces, children and stepchildren. Unmarried couples are on the rise, too. When there’s no will, these modern family relationships can be overlooked.

Only direct family can inherit under intestacy rules. Dying without a valid will could result in important people in your life, such as stepchildren and unmarried partners, being ignored when your estate is distributed. Likewise, estranged family members could benefit from a share of your estate.

People might not write a will for several reasons, including beliefs that:

  • What they’re leaving behind isn’t worth enough
  • It will go to their immediate family anyway
  • They’re too young to need a will
  • The process will be complicated and expensive

We hope to show why making a will is the best way to make sure your assets – including your home, any money in the bank and personal possessions – end up with who you want and in the most appropriate way.

Finding a will

First things first, you need to find out whether a will has been made, and if so where it is. This might have been something you spoke about with the deceased, but many people – even close family – go their entire lives without talking about plans for after death.

  • Ask the solicitor. When you get a professional to write your will, they’ll also store it. If you need to find someone’s will, you can ask their solicitor. To obtain the will you’ll need to prove you’re the named executor and present proof of death. If the solicitor is no longer in business, don’t panic – you can contact the Solicitors Regulation Authority which holds records for all solicitors and will be able to tell you where that firm’s files are.
  • Ask the bank. Banks also hold copies of wills. They’ll only give them to the executor of the will. You’ll have to take a copy of the death certificate and proof of ID.
  • Search their home. Of course, you should have permission to be doing this and it’s not recommended if there are disputes about how the estate will be divided. Otherwise, you can try looking in common hiding spots – the study, drawers in a bedroom or an attic. It’s unlikely they checked their will regularly, so it would probably be filed away somewhere out of mind.
  • Carry out an online search via Certainty - The National Will Register.

What's an executor?

The person who’s responsible for sorting out the deceased’s property and assets.

They could be named in a will or appointed by the court.

What happens if someone dies without a will?

If you can’t find a will, the deceased probably didn’t make one. After all, in 2017 60% of adults in the UK didn’t have one. When they pass away, they die intestate and their estate is usually administered by the next of kin. The administrator can’t just divide the estate up as they wish, but must stick to intestacy rules set out by the UK government.

Intestacy rules explained

Intestacy rules state what happens when there isn’t a will, including who can and can’t inherit. The rules state who your estate will be given to. The current rules, introduced in October 2014, are strictly based on the following relationships:

  • If there’s a partner by marriage or civil partnership and children.

    What each person’s estate is worth will vary. The spouse of the deceased will receive everything up to the value of £250,000. In addition, the deceased’s personal items are gifted to the spouse.

    Anything on top of £250,000 is divided in two. Half goes to the deceased’s children when they turn 18, and the other half is added to the spouse’s existing inheritance.

  • If there’s a partner by marriage or civil partnership, but no children

    The spouse inherits everything. All the proceeds of the estate – including property, money and possessions – go to them. No other family members are considered under intestacy rules.

  • If there are children but no partner by marriage or civil partnership

    The children inherit everything. All proceeds will be split equally between siblings, but they’ll only get their share when they turn 18. Adopted children can inherit, but stepchildren can’t.

    No partners are considered unless they were married to or in a civil partnership with the deceased.

  • If there’s no partner and no children

    The estate goes to their parents. If their parents are deceased, it’ll be handed out in this order of surviving family members:

    • Brothers and sisters (or nieces and nephews if a sibling has died before you)
    • Grandparents
    • Uncles and aunts (or cousins if an uncle or aunt has died before you)

    If there aren’t any living relatives, it goes to the Crown.

    While many people like to remember different family members in their will, intestacy rules don’t allow this. Loved ones you’d want to benefit from your estate would be overlooked. Or family members you’ve not spoken to in years could be favoured.

    Currently, intestacy rules don’t allow the following groups of people to inherit:

    • Unmarried partners
    • Same-sex couples not in a civil partnership
    • Relations by marriage e.g. stepchildren
    • Close friends
    • Carers

Source: Citizen’s Advice

You’ll hear stories of how stressful it can be dealing with an intestate estate. It can take months to work out what needs to be done and can involve instructing a tracing agent to build an accurate family tree, which all takes time and costs money.

But that isn’t the only reason not writing a will might be an issue. Many people would be uncomfortable with the following realities of intestacy rules:

  • If there are no surviving relatives, the estate passes to the Crown – this means any friends or partners you’re not married to will miss out.
  • Financial dependants who don’t inherit under intestacy would have to claim under the Inheritance Act before getting support.
  • It doesn’t consider special requests from family members. All personal possessions will be divided up as above, even if the deceased might have promised special items to their family.

If you think these rules would affect who your estate ends up with, it’s time to write a will. It’s the best way of making sure your money, property and possessions are divided as you wish.

How do you value an estate?

You need to consider the rough value of all assets:

  • Property
  • Savings
  • Any life insurance or endowment policy
  • Pensions (subject to rules, so specialist advice should be sought)
  • Investments in bonds, stocks or shares
  • Cars
  • Jewellery and antiques

As well as how any debts will be paid, including:

  • Mortgage
  • Credit cards
  • Bank overdrafts
  • Loans

Source: Age UK

Who needs a will?

At key stages in your life, you’ll be reminded of the importance of a will – when you buy a house or have a baby, for instance. But it’s easy to get distracted. Before long, writing a will is at the end of your to-do list again.

Most people should consider writing a will. It’s something lawyers or will writing professionals can help with. Although you can write a will yourself, you’ll need to make sure it’s legally valid – otherwise, intestacy rules will apply. For more advice on writing a will, read our guide.

On top of deciding who gets what, a will allows you to:

  • Choose an executor
  • Decide what proportions will go to who
  • Name a guardian for your children (if both parents die)
  • Make funeral requests
  • Donate to a charity
  • Give personal items to loved ones
  • Leave your pet(s) to someone
  • Minimise inheritance tax
  • Protect and preserve assets for your loved ones

Still not sure how intestacy rules will affect you? GOV.uk has a helpful tool which tells you who will inherit an estate when someone dies without a will.

Frequently Asked Questions

q1 What about jointly-owned property?

It’s common to own property with someone else – either as tenants in common or joint tenants.

If they own the house as joint tenants, when one person dies, the other automatically inherits their share. This property doesn’t count as part of the deceased’s estate when it’s divided up.

If the deceased owned a house with someone else as tenants in common, the living person doesn’t automatically inherit their share. If there isn’t a will to state otherwise, their share of the house will be divided up under intestacy rules.

q2 I’ve only informally separated from my partner. Could they inherit under intestacy rules?

Yes. If you’ve separated but aren’t yet divorced, your ex could get some or all of your estate.

q3 Do children receive their inheritance immediately?

No. Trustees will manage their inheritance until they turn 18. If they marry or enter a civil partnership before they reach this age, they can get their inheritance earlier.

Disclaimer: The information in this guide is for general guidance on your rights and isn’t legal advice.