Should you rely on the Rules of Intestacy?
If you die without a valid Will, the division of your assets will be determined by the Rules of Intestacy, a statutory order of relatives who will share your estate. Under these rules, if you die with a spouse (or civil partner) they inherit everything; if you also have children, then your spouse receives a “statutory legacy” (see more below), and the remainder of your estate is shared between your spouse and children. Further relatives inherit if you die without spouse or children.
The government have just announced plans to update these rules, which were last changed in 2014. Under the new rules, from 6 February 2020 the “statutory legacy” – the amount given to a surviving spouse or civil partner – is to increase from £250,000 to £270,000, in line with the Consumer Price Index. This means that for intestate deaths leaving a spouse and children, the first £275,000 of the estate will go to that surviving spouse, with the remainder shared between the spouse and children.
But remember, this only applies to married spouses or civil partners, unmarried partners still do not receive anything under the intestacy provisions, either now or as a result of these forthcoming changes.
If there is a surviving cohabitee they could in certain circumstances apply for “reasonable financial provision” under the Inheritance (Provision for Family and Dependants) Act 1975, but this is a very slow and potentially expensive option, and in the meantime, they may be blocked from living in the couple’s home if it was not jointly owned.
So, a welcome increase for surviving spouses of those dying without a Will. But does the law go far enough? Some have been calling for a change to the law to allow unmarried partners to benefit from these rules, but that would not appear to be within the government’s current plans, especially with the recent introduction of civil partnerships for heterosexuals, which seems to suggest the importance of a legally recognised relationship to benefit from the intestacy rules is still paramount, and now arguably easier to achieve for any couple, who may not have wanted to marry. The legal position is the same both for heterosexual or same-sex spouses or civil partners.
It’s estimated that around 40% of the adult population don’t have a Will. Even if you are married or in a civil partnership, there are still many reasons to make or review your Will to ensure it is up to date and will protect your assets and family in accordance with your wishes.
Simon Davis, president of the Law Society, said, ‘‘Writing a legally valid will with the help of an expert solicitor ensures people’s estate is inherited exactly as they would choose and can prevent a whole raft of problems landing on loved ones when they are grieving.’
To be valid, a Will must be in writing and be signed by the person making the will in the presence of two or more witnesses, who must also sign at the same time.
Making a Will is something that people often put off, perhaps because they find it hard to think about it, but it’s the only way you can be sure of what happens when you die, and there are issues that will be important at different life stages. If you have children under 18, it’s likely you would want to have named guardians to care for them, or to make special provision if a child of any age has limiting physical or mental health issues. Older people may want to make plans to mitigate inheritance tax, and cohabiting couples may want to ensure property or assets pass to each other, as they do not have the protection that comes with marriage or civil partnership. Under the intestacy rules no friends or charities will benefit either, if you want the freedom to choose your beneficiaries the only way of ensuring this is to make a Will.
Whatever your family or financial situation, everyone should consider making a Will, and the limited change to the intestacy rules in February does not change that position, a valid and up to date Will is the best way of protecting your family and your money.