Personal Law

It is estimated that around 54% of adults don’t have a will. A lot of the time, people haven’t got around to making a will yet, or think that they don’t actually need one. So what happens? If you die without a will, your estate is divided in accordance with the rules of intestacy.  These rules are contained in legislation that is over 56 years old and you can judge for yourself whether that reflects family relationships in 2020.

Will my spouse or partner inherit everything?

It is a common misconception that when one member of a couple dies, the surviving spouse or civil partner will inherit their whole estate.  This is not the case. The survivor is entitled to:-

  • a housing right up to a maximum value of £473,000, if key conditions are met.
  • household contents, up to a maximum value of £29,000, if key conditions are met.
  • Cash – the survivor will receive a cash right of £89,000 if the deceased is not survived by children. This is reduced to £50,000 if the deceased is survived by children.
  • Legal rights – these provide for the survivor to receive a fixed share of the moveable estate (all assets except land and buildings). If survived by a spouse or civil partner, and children, the survivor receives a third and if survived by a spouse or civil partner only, they will receive one half.

Where couples cohabit, and are not married, the survivor is not entitled to anything automatically. The surviving cohabitant needs to apply to the court and the maximum the court can award is what the cohabitant would have received if the couple had been married or in a civil partnership.

If my partner doesn’t inherit, who does?

The remainder of the estate (or all of the estate when there is no surviving spouse or civil partner), known as the free estate, is then divided in the following order:

  1. children and adopted children. The rules provide that where descendants survive, they should inherit.
  2. Parents and siblings where there are no descendants. The free estate is divided into two halves, with one half being divided between the deceased’s parents, and the other half being divided among the deceased’s siblings Half siblings only inherit if there are no siblings who share both parents, or their descendants, to inherit.

If only parents survive, they take the whole estate. If only siblings survive, they take the whole estate. The rules provide for the descendants of the siblings to inherit the whole estate where parents and siblings do not survive the deceased.

  1. The surviving spouse or civil partner will inherit the free estate if the deceased is not survived by children, parents, siblings and any descendants of them.
  2. The Act then provides for aunts and uncles on both the maternal and the paternal sides, then their descendants, to inherit.
  3. Succession then goes to grandparents, then great-uncles and aunts, then very remote ancestors (great-grandparents for example), or their descendants.
  4. If there are no surviving relatives whatsoever, the Crown will take the whole estate.

Does this fit family relationships in 2020?

Who doesn’t benefit on intestacy? Spouses or civil partners don’t inherit everything, cohabitants need to apply to the court to receive anything, the provisions for half siblings are very limited and there is no provision whatsoever for stepchildren. Plus, the default position for children is that they inherit at 16. Some may say that is far too young!

How can I choose who inherits my estate?

Making a will avoids the complications that arise with intestacy and provides control and certainty and lets everyone make the provisions that are right for them and their family. My blog explains how easily this can be done.

Having a will in place also means that it is easier to wind up your estate, it is cheaper as there are less steps when a will is in place and lastly, it is usually quicker.

Angela McCulloch
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