If you die without a Will, the rules of intestacy will govern the distribution of your estate. The rules apply to everyone, married or not. Your spouse will be in a privileged position compared to others who may seek to benefit; however, the intestacy rules can still have unexpected results.
It is crucial that you understand these rules. Only then can you make an informed choice about your estate.
Implications of the intestacy rules
1 – Your spouse* may not inherit your entire estate
Under the intestacy rules, the surviving spouse will only receive the entire estate in two separate circumstances:
- if there are no children of the marriage; or
- if the estate is worth less than £250,000.
If this is not in line with your wishes, you will want to make a new Will.
2 – If your children are entitled to a share, they will inherit at the age of 18
If your children inherit under the intestacy rules, they can take control of their shares at 18. Your executors will have no right to retain the funds once they have reached the age of inheritance.
If you choose to prepare a Will, your solicitor can draft a Will that defers the age of inheritance until such a time when your children are financially mature enough to deal with their entitlement. You can also draft your Will to help your adult children safeguard their inheritance.
3 – Stepchildren cannot benefit under the intestacy rules
Regardless of how long you have been a step-parent or the nature of the role that you play in that child’s life, a stepchild will not benefit under the intestacy rules.
To avoid this situation, both the biological parent and the step-parent (and grandparents if relevant) should consider preparing a Will.
4 – The intestacy rules cannot protect your estate if your spouse later remarries (or goes through a subsequent divorce)
Your spouse is free to deal with the assets inherited from your estate as they wish. They could choose to make a Will in favour of their new partner instead of your children or family. If they remarry and do not make a Will, the new spouse will benefit under the intestacy rules.
If your spouse divorces their new partner, the inherited assets may be at risk of being considered part of their estate available for financial provision on divorce.
To protect your estate, you may wish to consider preparing a Will with asset protection provisions.
5 – Are you happy with the intestacy provision if your spouse (and your children) die before you or in a common tragedy?
If your spouse or any children do not survive you, the intestacy rules make provision for your wider family.
Again, the rules may not be in line with your wishes and having a Will allows you to benefit friends, godchildren and family that you choose. You can even benefit charities. Having a Will gives you these options.
If you would like to be kept up to date with legal news and receive helpful insights about Wills and more, follow us on social media.
*Please note the terms spouse should be taken to include civil partners.