The Team

What happens if you die and haven't made a Will?
18/12/2020
What happens if you die and haven't made a Will?

We’re frequently asked this question by clients – funnily enough, when they decide to make their Will. We also frequently explain to clients why you should make your Will. Less frequently, we explain what happens if you don’t make your Will.

 

Let’s deal with, perhaps, the most straight forward situation.  If you are married, then it’s likely most – or perhaps all - of your estate will go to your spouse (and if you have children, they, too, have rights to share in your estate). The same rules apply to Civil Partnerships.

 

When someone dies and is survived by a spouse or partner and children, their spouse or partner is entitled to something called Prior Rights and both the spouse or partner and the children are entitled to something called Legal Rights.

 

The reason we say this is that there are limits that come into play. The fact that you are married or civil partnership doesn’t mean your spouse or partner will receive your entire estate.

 

Your spouse or partner’s entitlement under Prior Rights is to the family home – up to a value of £427,000, the furniture in the family home up to a value of £29,000 and, if there are no children, £89,000 in cash or £50,000 if there are children. You should also be aware that if the deceased had children from a previous relationship, that would mean the spouse or partner entitlement would be at the £50,000 level.

 

Once Prior Rights have been dealt with, we then have to deal with Legal Rights. If there is moveable estate (estate that doesn’t form land and buildings) left after satisfaction of the Prior Rights and there are children, one third of the remaining moveable estate will pass to the spouse or partner and one third split equally amongst the children. The children then have an entitlement to the remaining estate and it doesn’t matter if it is heritable (land and buildings) or moveable.

 

This is the position if the person who has passed away had a spouse or civil partner. If that person who died was unmarried but lived with another person as a “couple”, it doesn’t matter how long that relationship was, the surviving member of the “couple” has no entitlement at all to any part of the deceased’s estate if there is no Will.

 

We hear time and again of situations where someone has died but didn’t get divorced from their spouse who then unceremoniously evicts the partner, sometimes who has been in the relationship for many years, from the family home.

 

Sometimes, relationships with step-children go wrong. This can happen for a variety of reasons. When your spouse or partner dies, those step-children have automatic Legal Rights to share in his or her estate. If your spouse or partner didn’t leave a Will, you have no rights to the estate and we’ve heard horror stories of step-children evicting a step-parent from their home they’d shared from their partner.

 

As you can see, if you aren’t married or in a civil partnership and there’s no Will and your partner dies, you are in a very exposed and insecure position.

 

We encourage all our clients to make their Will. All you need to do is contact us today to get the ball rolling.