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Intestacy - What Happens if You Die without
Making a Will
Although it is usually advisable for most
people to make a will if no will has been
made then the deceased's property will
devolve according to the intestacy rules. In
fact, those rules are based upon an analysis
of what most people actually do in their
wills and so the intestacy rules very often
correspond to what the testator would have
done by will anyway. The rules are
periodically revised as will-making patterns
change.
Having said that, making a will can have
considerable advantages over dying intestate
for any of a number of reasons. For
instance, the unmarried partner of the
deceased would not benefit under the
intestacy provisions. Bearing in mind that
many people today choose not to marry for
one reason or another this is a particularly
important point which should never be
overlooked in such relationships. Nor would
any friend or charity that the deceased
wished to favour be able to benefit unless
there was a will. Similarly, a person making
a will might very easily want to leave
different amounts to relatives of the same
degree who would otherwise take equally
under the intestacy rules. Also, there could
be inheritance tax benefits to be obtained
by disposing of one's property in a certain
way by will. Bearing in mind that
inheritance tax is levied at the rate of 40%
over the exempt threshold this can be a very
significant fact in larger estates.
These are simply examples of the sorts of
reasons why people might choose to make a
will rather than dying intestate and it has
to be said that not making a will in some of
these situations would be quite
irresponsible. There is also a non-legal
factor which most solicitors will have
observed often enough: even though what a
client wishes to do by will would also be
achieved by the intestacy rules in a given
case many clients do gain satisfaction from
"having put their affairs in order".
Although that may be illogical it is as
equally true and most solicitors would
confirm it. For the relatively small amount
it usually costs to make a will many clients
undoubtedly obtain peace of mind.
The three most common situations which arise
on intestacy are:-
1. Where the deceased leaves a spouse but no
children and no near relatives in which case
the spouse takes all.
2. Where the deceased leaves a spouse and
children in which case, provided the estate
exceeds a certain amount, the property is
divided between the spouse and children.
3. Where the deceased leaves neither wife
nor children in which case certain near
relatives benefit in a given order of
priority.
It can readily be seen from the third
situation that the surviving partner of a
co-habiting couple can be left high and dry
so it is almost always the case that clients
in such a position should make a will. In
the case of intestacy one needs Letters of
Administration to deal with the estate of
the deceased rather than Probate but the one
procedure is quite as simple as the other
except, of course, that one can appoint an
executor by will whereas only certain
specified people in a given order of
priority would be eligible to request
Letters of Administration. |
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