Why The Intestacy Rules Don't Always Work

Although people often look to organise their affairs with a Will, some still believe that the rules of intestacy (which dictate what happens to your estate when there is no valid Will) will be sufficient for their family in the event of their death. ?

“It will all go to my partner, and if not then it will go to my children?” We hear this comment fairly frequently but, even if this is the case for your estate, there are dozens of issues that may arise from not having a valid Will in place that do not necessarily mean varying who will inherit your estate.?

Below, we discuss a few of the issues that may occur if you do not organise your estate by putting a valid Will in place.

(1) You could disinherit your own family...

Imagine that you are married, but you have no children.? Both you and your spouse may die in an accident together, and you (as the eldest) would be presumed to have died first. ?Your assets would pass automatically to your spouse’s estate and their surviving blood relatives would then inherit it all.?Your family would lose out, and your wishes would likely not be effected. ?Even sentimental keepsakes (for example your grandmother’s ring) will pass outside of your family to people that you may not know, or who may not appreciate the sentimental meaning of the item.

(2) You increase the risk of a successful claim against your estate...

You may also believe that your family “have an understanding,” and that if it did come to it, then they would be amicable and share out your assets where needed. However, contested probates are at an all-time high, particularly with more complex family structures becoming commonplace, and a lack of certainty can result in more arguments regarding your estate.? At Leeds Day, we can advise you on mitigating against the chance of claims being successful, but a Will is the strongest indication of your intentions for your estate to the court. Having a valid Will in place can help to minimise the risk of a successful claim against your estate by third parties.?

(3) Your minor children may not be adequately provided for...

Provision for your child or children can also be distinctly lacking where there is no valid Will. ?For example, when you have divorced, the other parent of your minor children would likely end up being responsible for holding their inheritance until they reach 18. Depending on how financially responsible you believe your former partner to be, you may not wish for them to hold money for your children for several years. Do you also believe that your children would be fiscally responsible and make sensible decisions to sustainably benefit from their inheritance by the age of 18? ?If they are like the teenagers that we know, then probably not! ?By appointing responsible Trustees under your Will, you can manage how your children will receive their entitlement, and who will be responsible for ensuring that it hasn’t disappeared within a week.

(4) You can prevent your children from being disinherited by your spouse...

With a Will you can also retain an element of control over your estate assets, which our clients often find preferable when they are on their second marriage. You may leave your estate (or part of it) to your spouse on a life interest, but eventually you can ensure that your assets still go to your children from your previous relationship/marriage. If you do not have a Will, then your spouse would automatically inherit your estate without any controls on how they handle your assets. This means that if your spouse fell out with your children from a previous relationship, then they could disinherit them entirely.

(5) Beneficiaries with a disability may not be properly provided for...

If you have an intended beneficiary who needs more help with managing their finances (e.g. a beneficiary with learning difficulties or another disability that means they are reliant on long-term financial support or care), then the rules of intestacy will likely not provide the best long-term financial planning for that beneficiary. You can leave an inheritance for the benefit of such a beneficiary on trust so their inheritance can be properly managed by your choice of Trustees, so payments can be made to sustain them on a longer-term basis, rather than just in one lump sum.

(6) Unmarried partners will lose out...

If you are in a long-term relationship with someone, but you are not married or in a civil partnership with that person, then they would not automatically benefit from your estate. This means even if you have been with someone for a decade or longer, they would not automatically have a right to inherit your estate, and they could be faced with bringing a costly legal claim in order to receive any entitlement. This could mean that they may have to vacate the home that you shared, and that they may not be able to financially sustain themselves. Claims are stressful and can take years to resolve, so again we would recommend that your provide your loved ones with certainty by putting a valid Will in place.

Summary

The above is just the tip of the iceberg when considering issues that may arise from not organising your estate with a Will. Preparing a valid Will offers your family more certainty, and can help minimise the risk of problems in your estate administration when you do pass away.

Some people can find taking the first steps in arranging their affairs quite daunting, but you need only consider a few simple points (we can help you talk through the rest);

• Who would you want to deal with your estate (an Executor)?
• Who would you trust to be a guardian to your children?
• Who would you want to inherit your assets, and who would replace them if they had passed away?

We offer a personal, friendly and sympathetic approach, to assist you in planning and managing your affairs most effectively in a wide range of situations. ?If you need any advice in relation to any will, estate planning or bereavement matter then please contact Leeds Day on 0844 567 2222 or email [email protected]. ????