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No Will – so what?

Introduction

There is a fairly widespread misplaced belief among the population at large that it is unnecessary to go to the trouble and expense of preparing a will. The reluctance to address the uncomfortable fact that we are all mortal is reinforced by the apparent need to arrange a meeting with a solicitor and to pay for the privilege of doing so! Things may change in time because the Law Commission is consulting on proposals to change the current very strict formality rules that apply to the making of wills to reflect the fact that we are all now living in a digital age. However, as this would mean wholesale change to the law of wills, this will probably be several years off and for the time being we are all stuck with the Victorian Laws that govern will making.

Why make a will?

The problem with not making a will is that the rules of intestacy, which are the legal rules that apply where a person dies without a valid will, are rigid, and have been drafted to deliberately restrict the beneficiaries to specific classes of family members.  An individual’s wishes in terms of who may benefit from their estate and how become irrelevant.  It often comes as an unwelcome surprise following the loss of a family member to find that only married or civil partners and limited close relatives can inherit under the rules of intestacy. A divorced person or a person whose civil partnership has been legally ended will not benefit under the rules of intestacy. Similarly, “common law” partners (i.e. couples who are neither married nor in a civil partnership) cannot inherit under the current intestacy rules.

The intestacy rules

Under the current rules, where the deceased leaves surviving children, the surviving spouse or civil partner will inherit:-

  • All the personal belongings of the deceased
  • The first £250,000 of the estate
  • Half of the remaining estate.

If there are no surviving children (including grandchildren or great-grandchildren) the partner will inherit the entire estate. If there is no surviving spouse but the deceased leaves children, those children will inherit the entire estate equally. Adopted children are included as “children” under the intestacy rules, but otherwise a child has to be a biological child of the deceased to inherit. This therefore does not include step-children.

The structure of family life now is very much more varied than what was contemplated when parliament passed the Administration of Estates Act in 1925 which sets out the rules that still apply today.

For more information on the intestacy rules, please see our intestacy rules flowchart.

Impact on land ownership

As the intestacy rules address the entitlement to a deceased person’s estate by reference to value, it is easy to see how, particularly in the case of a landholding, difficulties can arise in dividing up estate assets. It is rarely the case that a farming family will be happy to see the family farm sold in its entirety in order to divide up the assets in the fixed shares, but it is often a very difficult task to divide up land and buildings amongst the beneficiaries because of the scope for different opinions as to the quality and value of the land concerned.

This can be complicated further where the deceased landowner leaves a spouse and children. The intestacy rules in that case would provide for surviving spouse to receive all of the personal belongings, assets to the value of £250,000 and 50% of the balance. That formula could mean that the surviving spouse loses ownership and control of a large part of the farming business to the deceased’s children -  who may not necessarily be the surviving spouse’s children, and that could critically interfere with the smooth operation of a farming business.

The solution

As stated above, the failure of the intestacy rules to address the more varied and complex nature of modern family living, makes it all the more important to make a will to ensure that our estates pass to those who we would wish to benefit when the time comes.

It may seem, when we are in good health, that the cost and effort of making a will can be put off for another day in the distant future, but the reality is that this is one of the most important and cost effective investments we can make. If we do not do so, the eventual cost to those we leave behind, could be significantly more than the cost of doing so now. Making a will can be a discreet one off exercise. Once undertaken, it can be put in a mental “box” in the back of our minds as a task that need not be revisited for many years.

The Ashfords Disputed Wills team have advised on the full range of problems that the unplanned impact of an intestacy can have on farming families– from the surviving spouse of the farmer being put into a position of conflict with her daughter by the operation of the intestacy rules, to the break-up of the entire farming business caused by the division of ownership prescribed by the intestacy rules.

If you need further advice or assistance, please contact our Disputed Wills and Trusts Team on freephone 0800 0931 336 or by email willdisputes@ashfords.co.uk for a free, no obligation chat to see how we can help you.

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