What if I die without a Will?

Basic principles – the Three Steps

1. First, if you own something jointly with someone else, then property law may operate automatically to pass your share to the surviving co-owner/s, outside your estate.

This applies only to joint assets held under a ‘joint tenancy’.  If an asset is jointly-owned under a ‘tenancy-in-common’, then your share does not pass automatically to your surviving co-owner/s, but forms part of your estate.

If you don’t know the difference, look at the Joint Property fact sheet on our website or, better still, talk to us.

2. Next, your net estate (everything you own, apart from joint assets passing automatically to others, and after paying your debts, the cost of your funeral, the cost of winding up your estate, and any Inheritance Tax) is divided by the Intestacy Rules between what are still sometimes called your ‘next of kin’ – your closest family – in a way intended to be reasonably fair in most cases.
3. Finally, if someone feels unfairly treated by this process, he or she may have a right under law to make a claim against your estate, asking a judge to distribute your estate more fairly. These claims are complex, expensive and uncertain – a last resort.

The Intestacy Rules

The most important thing to know about the Intestacy Rules is what they don’t do.

• If you live with someone (not just sharing a house), but you are not married or Civil Partners, the only way to be sure that your partner inherits from you is to make a Will,
• and, if you want to avoid a double Inheritance Tax charge – once on your death and again when your partner dies – you have to link that Will with the right sort of Trust.
• If your family includes children who are yours but by more than one partner, or who are not yours but who are part of your family, the only way to make sure that they are all treated as you would wish, is to make a Will.
• If you are the last surviving parent of a child, a Will is also the only way you can appoint the Guardian who will take over as parent, and the Trustees who will manage the money, if you die while your child is still young.

Even if you think the Intestacy Rules may do what you want, so that you do not need a Will, the Rules are complicated, family structures are more complex than they used to be, and it is terribly easy to get it wrong.

So make a Will.

Making a Will

To make a Will properly, you need to understand the family and financial circumstances, and the wishes, of the person making the Will.

You also need a thorough knowledge of the law of equity, succession law, trust law and Inheritance Tax, and of large elements of property law, family law, company law, insolvency law, Capital Gains Tax and Income Tax – only some specialist solicitors are trained and professionally qualified in all these areas.

These days the law is so complex that almost all solicitors focus on narrow areas of it and very few specialise in this field. We do.

At Colemans, our senior partner Michael Cutler has been a solicitor for over 40 years and was admitted in 1995 to membership of the Society of Trust and Estate Practitioners (‘STEP’), the international, cross-professional specialist body for the most skilled and experienced in this field.

Michael heads a specialist team of people who are equally dedicated to this challenging area of the law.

At Colemans, we have extensive experience of helping clients and their families with this complex area of law. For more information, please contact a member of our experienced and specialist Private Client team by calling us on 01628 631051 or email private.client@colemans.huntersserver.co.uk to arrange a meeting.

Categorised in: Wills, Probate and Trusts

This post was written by Colemans Solicitors LLP