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Dying without a will is a dangerous business. You risk your money going to the wrong person, leaving dependants struggling and, in extreme cases, your assets going to the Crown.
Yet only 37 per cent of Brits have written a will, according to the National Wills Report, down from around 50 per cent in the past.
“Most people know they should write a will, but many never get round to it,” says Adam Vanstone, chartered financial planner at Chester Rose Financial Planning.
“Partly that’s because nobody likes confronting their own death, but mostly it’s because they don’t understand what happens if they don’t.”
So, here’s what could happen if you die without an up-to-date will in England and Wales.
Married, with or without children
There are different rules depending on if you have children or not, and even their age.
Without kids, for example, your spouse gets everything, free of inheritance tax (IHT). They can also use your unused tax-free allowance when they die, as long as they make a will themselves. The surprise here is that your parents and siblings get nothing.
If you have adult children, however, things can change.
“The spouse will not automatically inherit everything,” says Brett Dixon, vice president of the Law Society of England and Wales. “Instead, they receive a set amount and share the rest with their descendants. This continues to be the case even if they are an estranged spouse.”
Your husband, wife or civil partner gets your personal possessions and the first £322,000 of your estate. Half of anything above that goes to them and the other half is shared between your children.
That means your children could end up owning part of your home, drawing it into a child’s divorce or debts, or leaving them pushing for a sale.
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Much can depend on how you own the property: If you own it as joint tenants, your share passes automatically to your spouse, will or no will. If it’s in your sole name or you own it as tenants in common, your children could inherit part of it.
There could also be an IHT bill on the children’s share, which a will leaving everything to your spouse could have deferred.
If you have young children, there are again different considerations.
“Where children are under 18, they cannot inherit their entitlement outright,” says Andrea Jones, national head of private client advisory at Irwin Mitchell. “Instead, their share is held on a statutory trust until they reach adulthood.
“This can create ongoing administrative responsibilities and costs for the family and often requires additional trustees to act alongside the surviving parent, which many families wouldn’t have chosen had a will been in place.”
Cohabiting couples
If you die with no will and live with a partner you are not married to, your partner will inherit nothing with your estate going to your children, if you have any, or your parents and siblings if not.
“There is a ‘common law marriage’ myth, in which the law will treat you the same as a married couple if you act like one,” says Dixon.
“This is not the case. Cohabitants do not have any automatic rights on intestacy. Without a will, your cohabiting partner will not automatically inherit anything.”
Your partner can make a claim on the estate through the courts, but it’s slow, costly and uncertain. If you own your home as joint tenants, though, it passes to them automatically.
Second marriages
“Intestacy can produce particularly harsh outcomes for blended families,” says Jones. “A surviving spouse is prioritised under the intestacy rules, meaning children from a previous relationship may receive less than expected or, in some cases, nothing immediately.
“This can often create tension between family members and may be very different from what the deceased would have wanted.”
For example, Bob has two children, Robert and Roberta, from a first marriage and then marries Olive. If he dies with an estate worth less than £322,000, everything will go to Olive. If it’s worth more, Olive gets the first £322,000 and half the rest. Robert and Roberta share the other half.
In simple terms: If you remarry, write a new will. Marriage usually cancels an existing one.
Separations and living solo
If you separate from your partner, but are not divorced, writing a will or updating an existing one should be a priority.
Die without an up-to-date will and your estranged spouse will inherit, no matter how long you have been separated.
“The misconception that separation ends inheritance rights can lead to unintended outcomes, particularly where the deceased had formed a new relationship or intended their assets to pass elsewhere,” says Jones.
On the other hand, if you are single and without children when you die without a will, your estate will go to your parents, then your siblings (or their children), then grandparents, then aunts and uncles (or their children).
And if there are none of those, it goes to the Crown. Your friends, godchildren or anyone else will get nothing.
“Making a will ensures your estate passes how you intend – whether that is to family, friends or charities,” says Dixon.
Free Wills Month
October is Free Wills Month, when anyone aged 55 and over can have a simple will written or updated for free by a participating solicitor.
It’s a good deal if your affairs are straightforward. But if you have young children, a blended family or a large estate, it’s worth paying for proper advice.
A basic will from a solicitor costs around £150 – perhaps not a lot to pay, for the knowledge that you aren’t leaving a mess behind you when you die.
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