The Risks of Dying without a Will

When someone dies without making a Will, they are considered to have died ‘Intestate’. This means that the division of their estate will be dictated by a hierarchy of people set out by the Administration of Estates Act 1925.

The prescribed list of those due to inherit under the Intestacy Rules are as follows:

1. Spouse or civil partner
2. Issue (children or grandchildren)
3. Parents
4. Brothers and sisters of the deceased (or the surviving issue of brothers and sisters who predeceased the intestate)
5. Surviving half brothers and sisters (or surviving issue of half brothers and sisters who predeceased the intestate)
6. Surviving half Aunts and Uncles (or surviving issue of half Aunts and Uncles who predeceased the intestate)
7. If none of the above the estate passes to the Crown

These rules in particular do not account for modern family dynamics, for example, step-children and unmarried couples. Controversially under these Intestacy rules, there is no such thing as ‘common law marriage’, therefore if you are an unmarried couple and one of you passes away without a Will, your surviving partner is legally entitled to nothing. Similarly, if you have remarried and wish for your step-children to inherit from your estate, they too are entitled to nothing under the Intestacy rules. It is important to ensure that you have a Will in place if you wish to leave all or part of your estate to someone who is not in the prescribed list above.

Family relationships can also sometimes be strained so if someone does fall under the above list and you do not wish them to inherit, then a Will is the only way to ensure that they have no automatic right to any of your estate.

As well as restrictions on who is or isn’t allowed to inherit under the Intestacy rules, the rules also restrict how much can go to a surviving Spouse (married couples) depending on the size of your estate. There is a Statutory Legacy set in law that a surviving Spouse receives in priority from their deceased partner’s estate and this was recently increased under the Administration of Estates Act 1925 (Fixed Net Sum) Order 2023 to £322,000. Where there is a surviving Spouse AND surviving children, if the value of the person’s estate goes above this figure, then the surviving Spouse is only to receive half of what goes above the Statutory Legacy limit. The children then receive the remaining half. This can pose a lot of issues if, for example, the person that died owned the matrimonial home in their sole name and the value is above the Statutory Legacy amount. It can also be an issue if the surviving Spouse is expecting to receive all of their deceased partner’s money and now they are finding they have to share this with the person’s children. This scenario can easily be avoided by making a Will to ensure your surviving Spouse is provided for as you wish.

If you do not have a Will or your Will is out of date and not representative of your wishes, then please contact us and we would be happy to get a Will in place for you. Please call the office directly to arrange an appointment with one of our solicitors or use our Contact Form.

Author: Megan Passat