Be warned: if you don’t make a will your estate may not go to who you want it to
Many people assume that if they die without having made a will (intestate), their estate will default to their next of kin.
For example, a father might own a company that is run by his eldest daughter, with the assumption all-round being that she will inherit the company and continue to run it upon his death. If the father has died testate, in other words, having made a valid will leaving his company in its entirety to his eldest daughter, then this will indeed be the case.
If the father has not made provision for his preferences in the form of a will, his entire estate, including the company, will be dealt with under the terms of the Succession Act 1965.
Rules for the division of property on intestacy:
If the deceased is survived by –
- Spouse or civil partner but no children – spouse/civil partner gets the entire estate
- Spouse or civil partner and children – spouse/civil partner gets two-thirds, one-third is divided equally between children (if a child has already died their children take a share)
- Parents, no spouse/civil partner or children – divided equally (or entirely to one parent if only one survives)
- Children, no spouse or civil partner – divided equally between children (as above)
- Brothers and sisters only – shared equally, the children of a deceased brother or sister take the share
- Nieces and nephews only – divided equally between those surviving
- Other relatives – divided equally between nearest equal relationship
- No relatives – given to the State
In the past, these rules may have been relatively straightforward. However, with the diverse family structures that exist nowadays, establishing ‘who gets what’ is not always an easy task.
If a man dies and is survived by his second wife, two children from his first marriage, one from his second marriage and three step-children, his widow will be entitled to two thirds of his estate and his two children from his first marriage and one child from his second (in other words, his biological children) will be entitled to the remaining third, divided equally between them. His three step-children are not entitled to anything from his estate.
If a person dies testate, i.e. having made a valid will, that person gets to decide how their estate will be divided. This also allows the provision for those who may not be entitled to anything if they had not made a will.
It is worth noting that if you are the spouse or child of a person who has died testate, and you do not feel that your spouse or parent made ‘proper provision’ for you in their will, there are forms of redress you can consider.
Anyone considering challenging a Will on these grounds should get our legal advice before applying to the court.
*In contentious cases, a Solicitor may not charge fees or expenses as a percentage of any award or settlement.