Jun
Nearly half of those aged 55 to 79 don’t have a will in place, charity Will Aid has told Saga Money – but while the thought of focusing on your final wishes can be off-putting, it’s a simple way to protect your loved ones.
Dying without a will may be common, but as Trusha Velji, Director at Touch Solicitors, explains it can leave loved ones heartbroken and, in some cases, penniless.
“When someone dies without a will, or with a will that isn’t valid, it can leave a terrible mess,” she says.
“A will ensures your estate is divided in line with your wishes, and having this set of instructions in place also provides considerable reassurance to friends and family when they’re grieving.”
What does it mean to be intestate?
The legal term for dying without a will, or with a will that’s invalid, is ‘intestate’.
“[Intestate] means that someone is ‘not testified’, that is there has been no witness to their will or wishes,” explains Emily Deane, Technical Counsel and Head of Government Affairs at the Society of Trust and Estate Practitioners.
It’s also possible to be ‘partially intestate’. This can happen where someone has a valid will but some of the assets can’t be passed on.
Laura Bowden, Lead Probate Solicitor at Farewill, explains: “If someone’s will leaves part of their estate to an individual who has already died, they will be regarded as partially intestate. Where this is the case, the rules of intestacy will apply to this part of their estate.”
What can cause a will to be invalid?
Even if you do have a will, it’s important to check it’s valid. Gary Rycroft, a member of the Law Society’s Council Membership Committee and the resident legal expert on Rip Off Britain, says it’s more unusual for the rules of intestacy to apply because a will is invalid, but it does happen.
Failing to follow the rules when drafting a will is one of the main reasons. “A will must be signed and witnessed correctly,” he explains. “Both witnesses must be in the same room when the document is signed. Going to one neighbour and then the next would make it invalid.”
Other reasons a will may be invalid could depend on something called ‘testamentary capacity‘ – the person’s mental ability to create a will.
If a person has diagnosed dementia, or other reason to potentially not understand what was being included in the will, and the effect it will have, then that could be challenged in court. In this case, it’s advisable to get medical confirmation of their ability to make and understand the will.
“A will could also be deemed invalid if someone was forced to do it,” Rycroft adds.
A will can also be revoked if you marry or form a civil partnership, unless it states that it was ‘written in contemplation of the marriage’, so it’s important to update yours if you’ve recently wedded.
Even if you’ve not tied the knot since making a will (or are planning to), it’s sensible to review your will regularly, especially if your circumstances change significantly, for instance divorce, becoming a grandparent or receiving a large inheritance.
What are the rules of intestacy?
Whether there’s no will, or an existing will is found to be invalid, the rules of intestacy set out the order in which your estate will be divided.
Different rules apply in England and Wales, Scotland and Northern Ireland, but all consider factors such as marital status, whether there are any children and, in some instances, the value of the estate.
The government has a useful intestacy tool to show how your estate would be shared out if there’s no will.
The simplest situation is where the deceased lived in England or Wales, and was married or in a civil partnership and had no children. Then, everything goes straight to the spouse.
If they’d lived in Scotland or Northern Ireland, the estate may be spread a little wider, potentially giving any surviving parents or siblings a share. However, it gets more complicated where the deceased has children.
Bowden explains: “In England and Wales, the spouse receives the first £322,000 [at the time of writing] of the estate plus 50% of any excess, with the remainder shared equally among the children.”
No children or spouse, and things can get even muddier. “The parents are first in line, then siblings,” adds Bowden. “You might even get to nieces and nephews if a brother or sister has already died.”
The rules of intestacy will also determine who is responsible for executing the estate, with the responsibility usually falling to whoever is first in line to inherit.
That means this role, which is called the administrator rather than the executor when someone dies intestate, usually goes to a family member.
Who is left out under the rules of intestacy?
The fact that the rules of intestacy are so heavily weighted to blood relatives means they can leave some significant others out in the cold.
“People just assume that everything will pass to their close family, but this isn’t always the case,” says Velji.
“It doesn’t matter how long you were together or what you contributed, if you weren’t married or in a civil partnership with the deceased, you won’t be recognised under the intestacy rules.”
Alongside cohabiting or common-law partners, stepchildren (who aren’t adopted by the deceased) are also outside the rules. “The only way to be sure that friends, stepchildren or live-in carers inherit something from you is to include it in your will,” says Deane. “Otherwise, they could be left out.”
The exception to this is where there is jointly-owned property, such as a bank account or a property owned as joint tenants. “If an asset is held as a joint asset during your lifetime, your share will pass to the co-owner when you die,” Velji adds.
Can an inheritance be altered after someone dies intestate?
If the rules of intestacy don’t match up with your family affairs, a ‘deed of variation’ could be used to undo any unwanted inheritances.
This must be completed within two years of the date of death and all the beneficiaries affected must agree to the changes.
It can be a valuable tax planning tool. As an example, an elderly parent could redirect an inheritance to kids or grandkids, thereby avoiding adding to his or her estate’s Inheritance Tax liability.
It can also be used to do the right thing. Rycroft says he has seen instances where someone dies unexpectedly without a will, leaving a long-term, cohabiting partner nothing.
“Under the rules of intestacy, everything would go to the deceased’s parents but they could arrange a deed of variation in favour of their son or daughter’s partner,” he explains.
“It’s great when this happens but it’s not guaranteed: the only way to be certain your estate will be distributed in line with your wishes is by having a valid will.”
How can I be sure my wealth is distributed properly?
Using a solicitor or professional will writer (in the latter case, ideally one that belongs to a professional body such as the Institute of Professional Willwriters or the Society of Will Writers) should ensure your will is valid and your estate will go to your loved ones.
“The main benefit of working with a reputable and qualified will writer is that you are paying for peace of mind – your own as well as your loved ones’,” says Deane.
Taking advantage of a charity will writing campaign such as Free Wills Month or Will Aid is another way to get your final wishes documented.
These give you the opportunity to have a basic will drawn up by a participating solicitor in exchange for a recommended donation to charity.
If it’s the prospect of having to make some tough decisions about what you put in your will that’s stopping you, Rycroft recommends starting with the basics.
“It’s better to have a simple will in place, giving details of your beneficiaries, than nothing at all,” he says. “You can always review it later.”
