Without a valid Will in place when you die the government has a set of rules in place that dictate who gets your assets, in which order and how much. This is set out below and flows from the top, the nearest relatives, to bottom the remotest relatives. If you do not make a will the below could apply.
1. If you are legally married or have a Civil Partner (not a common-law partner).
- If your estate (assets upon death) is less than or equal to £250,000 your spouse/partner will get everything. (No one else will receive anything).
- If your estate is above £250,000 your spouse/partner will get the first £250,000 outright. The rest of the estate will be shared out, with 50% going to your spouse/partner and 50% being shared between the number of children you have. (This includes legitimate, illegitimate and adopted children. It does not include Step or Foster children). If you have no children, your spouse/partner will receive your entire estate.
- If you have no spouse/partner but have children, they will receive your estate in equal shares.
- If you are cohabiting (not in a legal marriage or a Civil Partnership).
- Regardless of the size of your estate, your partner will not inherit any of it, despite how long you have been together or if you have children or not. There is a common belief that after 2 years of living together, you have “Common Law Rights”. This is false. There is no such thing in English law! In fact it will be your children who inherit everything and they could sell the home regardless of your partners wishes.
- If you have no spouse/partner or children, your estate will go to your parents in equal shares. This may mean that a single parent who has brought up the child alone their own without help or support from the absent parent would have to share their child’s estate with the absent parent.
4. If your parents have died, then your estate will be given to any brothers or sisters and if more than one, in equal shares. If any brother or sister has died, their share will pass to their issue (your nieces or nephews) if there are any.
5. The next group of people who can inherit your estate are half-brothers and half-sisters or their issue (you half-nieces or half-nephews) if there are any.
6. Beyond this, your grandparents will inherit your estate if they are still alive, again in equal shares.
7. After this, it will be your Uncles/Aunts or their issue, or beyond this half-uncles, half-aunts and their issue, again in equal shares.
8. Should your estate fail to pass to any of these groups or people, there is one last stop for the entire value of your estate, the Government!
Remarriage or forming a subsequent Civil Partnership after you make a will
If as a couple, you have acted wisely and made a will, you have probably set out who should inherit what and when. but should one of you die before the other, that person may in time decide to remarry or form a new civil partnership. It is far more common than you would think. This is especially true if you lose your spouse/partner when you are young.
In this situation, you could be forgiven for believing your existing Will would leave everything to your children. After all, that’s what your Will says, right? Well, no. If someone remarries or forms a new civil partnership any existing Will is revoked, and it’s as if that Will had never existed unless that Will was specifically made with your new marriage or partnership in mind and specified in the Will. If you are getting remarried or starting a new Civil Partnership, without preparing a new Will, your estate would now fall under the rules of intestacy as stated explained above.
Of course, if you are aware of this, as you now are! The sensible thing to do is to write a new Will. But would you write that Will leaving everything to your new spouse/partner and then to your children?
Many people do. Unfortunately, there is nothing to prevent the new spouse/partner from having a new Will drawn up leaving everything solely to their children. The problem with modem blended families, as they are often referred to, is that the children of one spouse/partner only had the relationship with the other spouse/partner due to their parent. If their parent has died the children may find they drift away from the stepparent. The stepparent quite often feels rejected by the stepchildren and decides to change their Will. Normaly cutting out the stepchildren from their new Will, in favour of their own children. There is nothing to stop this from happening because we are all free to change a Will whenever we want to.
This is quite a common occurrence and the children of one family never inherit from their parent’s estate because of the use of what are known as “Mirror Wills”. As legal professionals, we come across this situation time and time again. It may not be morally correct, but it is completely legal and there is little chance of successfully challenging a Will that has been rewritten even if it was not the intention of the parent who died that any Will should be rewritten. We have an article highlighting the pitfalls of mirror wills, that you can read here atheneys.com/blog/dangers-mirror-wills/
We think mirror Wills are very dangerous because they can be so easily changed once one of the couples has passed away. More worryingly, a mirror Will can be changed by one of the couples long before this. It could even be changed the next day and no one would ever know until it came to be read.
This leads us to consider where is a safe place to store your Will?
Many people store their Will and other legal documents in a safe place, in their home. We would suggest that one place these documents should not be stored, is in your home. You should consider just how safe this place really is. If you have a fireproof safe, it is probably OK. But how many of us invest in that level of security, not many. The alternative is a box in the cupboard upstairs, in a draw somewhere or maybe it’s hidden under the bed. The truth is, none of these places are secure. If there was a fire, flood or burglary would your inportant documents be safe?
If you have left someone out of your Will or if one person is getting less than another, it may well be in their interest to locate your Will before anyone else does and to destroy it. It’s not that uncommon for a Will to be partially rewritten or destroyed by a disgruntled heir. If they’re lucky, no one will be any the wiser and they will inherit more than they should have. Alternatively, if the Will is missing or declared invalid due to tampering, they may still be better off than they were because the intestacy rules will apply, and you can see how unfair and complicated that can be.
Having gone to the trouble of writing a Will, which is probably one of, if not the most valuable document, you will ever write and the original being the only legal version of it, should you not take steps to ensure it is still there when it’s needed?
We recommend the use of secure off-site storage for your Wills and other important documents. Whilst this does come with a small fee each year, normally around £25 per year, the benefits are enormous. Your documents are stored in waterproof wallets, in a specialist environmentally controlled document archive with CCTV, alarms and fire detectors. All your documents are electronically scanned and insured to cover the cost of rewriting them if they should be lost or destroyed in your lifetime or to cover any losses your beneficiaries should suffer if you have died. Your Will is also recorded on the National Wills Register, so anyone searching for your Will can find it. Of course, not just anyone can access it, this is tightly controlled. Only you and your appointed representatives can do that. We can provide full details on request.
We recommend making and here we have listed some considerations to help you plan:
Having explained just how easily things can go wrong with Mirror Wills, what can you do about it and how can we at Atheneys Law & Finance help you to protect your loved ones and ensure you have peace of mind once your new Will has been signed?
Whilst no one size fits all, there are some basic principles that would give you far more protection than a Mirror Will can. The first thing is for us to meet with you and find out just what it is you want to achieve. Is it straightforward or as is often the case once we drill down, somewhat more complicated?
We have moved away from a traditional office setup. This means we can keep our overheads down and pass on that saving to you. We do this by visiting you, not the other way around as many lawyers still do. This means you can be at ease and relax in your own home. It also means you can get hold of any documents we may need to see, either identification or existing legal documents.
Once we can see what is already in place, if anything, we can look at how you own your assets. Jointly owned assets and individually owned assets transfer in different ways upon our death. For example, if you jointly own your house, as many people do, your Will may not even have any control over it. The same can apply to any jointly owned property or accounts.
We can then consider who you want to benefit from your estate and when. Here we consider any children and other beneficiaries, how old should they be when they receive that inheritance?
If you have young children, do you want them to receive everything at 18 or would you prefer them to be a little older and hopefully wiser at say 21 or 25?
If your beneficiaries should die before you do, what do you want to happen to their share of your estate? Should it go to their issue (children) or should it go somewhere else?
Are there any disable beneficiaries?
If there are then a special trust can be set up to ensure their needs are taken care of. Without this, in place, anything you leave to them may be used to pay for the care they are receiving, or it may affect any benefits they receive because of their disability.
Would you be concerned if, when you die your son or daughter is in the middle of a divorce and what you give them could become part of the divorce settlement?
What if your beneficiary is a spendthrift and can’t be trusted not to waste their inheritance you spent so many years accumulation or if they have creditors knocking on their door because they owe money?
Maybe they are already quite wealthy and with the inheritance, you are leaving them, they now have to pay 40% in tax on what they inherited from you when they die.
If you are leaving someone out of your Will, who thinks they should be included, especially a son or daughter, how can you do this effectively if at all?
Have you considered who else is dependent on you and have they got a potential claim against your estate? If they have what can be done about it?
These are some of the types of things we consider on a daily basis. For our clients. We offer friendly up to date legal advice on all these matters. We make use of Trusts either within the Will or by creating Trusts now.
Our clients regulary ask as us, how often they should revise their planning. We suggest every 3 – 5 years, but we have put together a list of events below, that may make it prudent to do that earlier.
- You are now over 18 years of age.
- The Tax laws change relating to taxes on death.
- You have a job with significant hazards, such as a Firefighter, Police Officer, Military personnel (especially if you are deploying on operations), you work in a dangerous environment.
- You’re a new parent or have another child. If you did not make a will, there is no guarantee who would care for your child if you die. It will not necessarily be your family because the local authority and the Court decide.
- You buy a house with someone else.
- You get married to enter into a Civil Partnership.
- You separate or get divorced.
- You move.
- You come into money.
- You want to give to charity and have not already done so.
- Any of the people named in your Will as beneficiaries, Gradians, Executors or Trustees die, or you need to change them.
If you have read this article and feel you should talk it over with a professional advisor, we can provide a Free consolation without commitment.
As a word to the wise, be aware of companies and individuals who are not legally qualified. Do not be afraid to ask what qualifications they have. Any professional will be able to demonstrate their competence and experience to you. There are a number of companies that employ salespeople, who have had just a few days of training and are given the product to sell to you. Many do not understand the legal or tax implications of what they are discussing.
Here at Atheneys Law & Finance our staff are legally qualified lawyers and are members of either the Institute of Paralegals or the National Association of licenced Paralegals. In the unlikely event that we get something wrong, you have the reassurance that we carry £2,000,000 indemnity insurance for your protection.
Atheneys Law & Finance, always there when you need us.
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