I haven’t made a Will: Who will inherit my estate when I pass away?

Many people often overlook the need to make a Will, but sadly death is one of the few certainties in life. Therefore making a Will is something that everybody, regardless of age or wealth should do. Without a Will, there is no guarantee that your assets will pass to the people you would have wanted them to go to. The only way to ensure that your wishes are carried out is by making a Will.

In the event that you were to pass away without having made a valid Will, the intestacy rules would be applied to your estate in order to establish how your assets should be distributed and who should benefit from your estate.

Generally, if you are unmarried with no children then your parents will inherit, however if your parents have predeceased you but you still have surviving grandparents, your grandparents would potentially inherit your estate.

The intestacy rules are there to provide for future generations, and therefore where there are surviving biological or formally adopted children or grandchildren they will be the ones to benefit from the estate.

Marriage itself revokes an existing Will (unless it was expressly made in contemplation of marriage) and therefore if a married partner passes away without leaving a Will, or without a valid Will in force, the rules favour the spouse before any children. Is this what you would want?

Where your estate is worth more than £250,000, under the intestacy rules your spouse would inherit all your personal possessions, the first £250,000 plus half of the residue left over. Your children would then be entitled to inherit the remaining half of the residue only. Where you have more than one child, the half of the residue would be divided equally between all your children.

If your estate is not worth £250,000 or more, everything goes to your spouse and your children will not inherit anything at all.

Unlike marriage, divorce does not revoke an existing Will, it simply treats your ex-spouse as if they had died before you. One of the problems with this is that if you left your ex-spouse a gift in your Will – perhaps to assist with looking after your children, the gift will fail and if no alternative provision has been made for it, the gift will fall into the residue of your estate.

If you have minor children, another good reason to make a Will is that you can appoint a guardian for your children should you pass away. By appointing a guardian in your Will you can be safe in the knowledge that your children will be cared for by people that you know and trust, who can bring the children up in a way that you would approve of, for example making decisions about your child’s school and education.

Complications can arise where couples are co-habiting but are not married, as usually the co-habiting couple are financially dependant on each other. If one cohabitee were to pass away without a Will the survivor is likely to be left with nothing – which in most cases would not be what the deceased would have wanted.

It is a common (albeit wrongly held) belief that unmarried co-habitees are “common law” partners. From a legal perspective, this is not the case and unmarried co-habiting couples do not have the right to inherit in the same way as a married couple do.

Only parents, spouses, children, full siblings, half siblings, grandparents, aunties and uncles, half aunties and uncles, cousins and half cousins can benefit from an intestate estate, and should no such beneficiary be traceable your estate would be “bona vacantia” which means that it would go the Government. Something that the majority of people would want to avoid.

In a Will, you are not limited to choosing relatives as beneficiaries, you could name friends or a charity close to your heart to benefit from your estate. This may be wise as in certain circumstances leaving a portion of your estate to charity can reduce the inheritance tax liability due from your estate.

Without a Will you lose the element of choice. Making a Will is not scary. Making a Will is worth the peace of mind.

For advice on making a Will, please contact a member of our Wills team on 0800 015 0340 to arrange an appointment at any of our offices in Huddersfield, Halifax, Wakefield, Horbury, Leeds, Morley or Pudsey.