Most people assume that if you die without a Will, the process is straightforward, especially if you are married or have children. The common assumption is that everything goes to your surviving spouse or long-time partner, then your children, and the family sorts it out between them.
Sometimes, that is roughly what happens, but there are many cases when it does not.
When someone dies without a valid Will in England and Wales, they die intestate, and the law stops asking what they would have wanted. A set of rules written into the Administration of Estates Act 1925 takes over instead. Under these current rules, it does not matter if you have been in a longstanding relationship with your partner without marrying, or who you intended specific assets or gifts to be bequeathed to. The intestacy rules also do not consider whether you are estranged from certain relatives and would not want them to inherit from your estate.
They apply a fixed formula based on who you were legally related to on the day you died, and nothing else.
Our Wills and Probate team in Richmond has sat with a good number of families working through the consequences. The response is nearly always the same: “We didn’t realise it would work out like this.”
Below are some of the most common issues we see, and why, if you take only one thing from this column, it should be to sort your Will out now.
Who Actually Inherits When There is No Will?
There is a strict order of priority when distributing an intestate estate, and it is worth knowing where your loved ones would sit in it. If you are married or in a civil partnership and have no children, your spouse inherits everything. That is the one case where the outcome usually matches what people expect.
If you are married with children, it splits. Your spouse takes your personal possessions plus the first £322,000 of the estate, which is known as the statutory legacy. Anything above that figure is divided in half. Your spouse gets one half. Your children share the other half between them if they are old enough, or it is held in trust until they turn 18.
If you have no surviving spouse or civil partner, the estate goes to your children in equal shares. If you have no children either, it works down through parents, then siblings, then grandparents, then aunts and uncles. If there is genuinely nobody, the estate passes to the Crown.
The government’s own guidance sets the order out in full, and it is worth a read if you have never looked at it. Read it here: Check who can apply for probate and inherit if someone dies without a will.
The £322,000 Threshold Problem
One of the biggest issues we frequently come across is the statutory £322,000 legacy figure. As an example, consider a couple living in Richmond where the family home is worth £900,000 and is held in the husband’s sole name, which is common enough where one partner bought before the marriage. There are modest savings and two adult children from the husband’s first marriage. If he dies without a Will, his wife does not simply inherit the house. She takes £322,000 and half of the balance while his children inherit the other half, and they are legally entitled to it now, not when she dies.
If the money is tied up in the property, which is common in many estates, the only way to pay them is to sell. A widow in her seventies can find herself asked to leave the home she has lived in for thirty years by stepchildren who are perfectly within their rights to request their inherited share.
How the property is owned makes a real difference here, and it is worth knowing which applies to you. If a couple own their home as joint tenants, the deceased’s share passes automatically to the survivor and never forms part of the estate, so the intestacy rules do not reach it. If they own as tenants in common, which many people in second marriages deliberately choose so they can leave their share to their own children, the deceased’s share does fall into the estate and is carved up by the rules above. Most people are genuinely unsure which arrangement they have.
None of this is a rare scenario. Blended families, second marriages and property wealth are ordinary in Richmond and the surrounding boroughs. The existing intestacy rules were not designed with any of it in mind.
The People Who Receive Nothing
Intestacy recognises marriage, civil partnership, blood relations, and legal adoption. That is the whole list. Under the current intestacy laws, unmarried partners are not entitled to inherit. It does not matter whether you lived together for six months or forty years, whether you raised children together, or whether the house is in your partner’s sole name. Common law marriage does not exist in English law and never has, despite how many people are quite certain it does.
While there are talks for a change to the law under the cohabitation reforms, there are no guarantees as to what these would be and when they would take effect. The only route left is a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which means court, legal costs, lengthy delays, and no guaranteed outcome, all landing on someone who has just been bereaved.
Stepchildren you never formally adopted inherit nothing, however much you raised them as your own. Close friends, carers and charities receive nothing. And if you were separated but not yet divorced, your legal spouse still inherits, because separation carries no weight under these rules at all. Read our previous guide, ‘Who can claim under Inheritance Act 1975?’ for more information.
Nobody Has the Authority to Step In
There is a practical problem that arrives long before anyone argues about money.
With a Will, you name an executor, and that person can start dealing with things almost immediately. Without one, no one has been appointed. A relative must apply to the Probate Registry for a grant of letters of administration, and until that grant arrives, bank accounts stay frozen, and property cannot be sold or transferred.
That process can take months. In the meantime, someone still has to pay for the funeral expenses, the mortgage and the household bills. Families are often left covering all of it themselves and hoping to be reimbursed later. Where relatives disagree about who should apply, which happens more often than you would think, the delay stretches further, and the legal costs climb with it.
We have written before about why using a solicitor to draft your Will matters, and about whether preparing your own Will is really a cost-efficient saving. The point applies just as strongly to having no Will at all. Every pound saved by not making one tends to come back multiplied, and it is your family paying rather than you.
Your Children Are Not Covered by the Rules Either
Intestacy rules dictate who gets your money and the proportion of the estate. It says nothing about who raises your children. A Will is where you appoint guardians for anyone under 18. Without that, the decision goes to the family courts, who will do their best with limited information and may well choose someone you would never have picked. For parents of young children, this alone is usually reason enough to have a professionally drafted Will. Our guide, ‘What is the importance of a Will and how to make one?’, covers what else should go in it.
The Document People Forget Alongside Their Will
A Will only takes effect when you die, but it does nothing for you while you are alive.
If you lose mental capacity through a stroke, an accident or dementia, your Will sits in a drawer and helps nobody. What your family needs at that point is a Lasting Power of Attorney, and it can only be made while you still have capacity to make it. Miss that window and the alternative is the Court of Protection, which is slower, more expensive, and puts a judge rather than you in charge of who manages your affairs.
We set out the seven mistakes we see most often in a previous article on why every family and every business owner needs an LPA. Wills and LPAs really do belong together. Handling both in the same appointment often costs less and takes less of your time than doing them separately, and it means neither gets forgotten.
Wills Solicitors in Richmond upon Thames
Making a Will is a shorter and simpler process than most people imagine. For a straightforward estate, it can be done in a couple of meetings. What it removes is the risk of your family discovering, at the worst possible moment, that the law has made all the decisions for them.
At Jackson Longe Solicitors, our experienced Will lawyers understand the importance of protecting your family and loved ones when you are gone.
Given the breadth of our law knowledge matched with our celebrated service, it is easy to see why so many have turned to us throughout our ten years of business; we have not only the expertise, but the courtesy required to assist you in drafting and, when necessary, amending a thorough and complete Will tailored to your personal circumstances.
Allow us to empower your legacy, and speak to a trusted Will writing professional in Surrey today by calling 0208 332 2069 or emailing info@jacksonlonge.com
