by Parveen Haynes

This article was updated and re-published on 26 July 2023 to reflect that the amount of the statutory legacy increased.

In this two-part article, solicitor Parveen Haynes hopes to encourage everyone to make a Will… to protect the people and assets that are important to them.

In part two, she looks at what happens when a person dies without a Will.

Should you die without a Will in place, the law dictates who should inherit from your estate (your money, possessions, and property). 

These are known as the Intestacy Rules. They prescribe a strict order in which family members can administer and benefit from your estate. The family members can be the surviving spouse (this includes a civil partner for the remainder of this article), children, parents, and remoter blood family. If there are no family members, then as a last resort, your estate could pass to the Crown. 

The Intestacy Rules do not apply to someone you were living with (cohabiting); this could have disastrous consequences for them. They can also lead to family members with whom the deceased was estranged inheriting their estate, which is not what they would have wanted. 

A common assumption is that a Will is not required because a surviving spouse will inherit everything. This will largely depend on how the assets were held and their value. Any assets not passing to the other by survivorship will form part of the deceased’s estate. 

The Intestacy Rules provide that if the deceased leaves a spouse and children, the first £322,000 of their estate will pass to the surviving spouse, together with any personal belongings. 50% of the rest of the estate will pass to the spouse. The other 50% will be divided equally between the children, which could cause an issue where children are very young or of an age where they are not ready to handle large sums of money. Further, the surviving spouse may lose control of their home if they end up owning the property together with their children. 

Had the married couple been separated for many years but never gotten around to divorcing, the Intestacy Rules could mean very little to the deceased’s children. 

If there is no surviving spouse, the estate will pass to the deceased’s children in equal shares. In this scenario, if the deceased cohabited, the surviving partner could end up with nothing. If the children were minors, someone would need to manage the children’s inheritance for them until they reached the age of 18, when they can legally take possession of the money and/or property. This is still a very young age.

There is also a common misconception that cohabiting couples (with or without children) will automatically inherit everything on the death of their partner because they were the ‘common law husband/wife. This has no legal basis in English Law.  

Sometimes a cohabiting couple would have spent years together, contributing to the family home (property) and raising children. But for whatever reason, the property may only be in the deceased’s sole name. If the deceased did not make a Will dealing with the property, the partner could lose their right to remain in the property. In these circumstances, the surviving partner must negotiate matters with the family. But if they could not agree with the family, they would need to take legal action against the estate for financial provision – the property to live in and/or money to survive on.

 Legal action can be costly and time-consuming, often depleting precious resources of the family. It is also a stressful situation, especially when the family is grieving. These difficulties could have been avoided if the deceased had made a Will – leaving the property to the surviving partner or giving them a right to live in the property and providing them with adequate financial provisions. 

You can appoint a guardian in your Will to look after your children. This is an adult who would have parental responsibility for any child aged under 18. The guardian would be responsible for whom your children would live with, their education, and their health. The role only comes into force if the child has no surviving parent. Where there is no Will, the immediate family would be consulted by social services, who would determine who would look after your children. However, this may not be the person or persons whom you would have wanted to look after your children. 

To control how your estate will pass to your loved ones, make adequate financial provision for them and ensure that there will be someone of your choosing to look after your children, please make a Will. 

See also: Part one of this article

About the author

Parveen Haynes is a solicitor in our Wills, Probate & Life Planning department. She is a full member of the Society of Trust and Estate Practitioners (STEP), an associate member of Solicitors for the Elderly (SFE) and a member of The Law Society Private Client Section.

Further help

To contact our Wills, Probate & Life Planning team, please call us on 01494 773377, or complete the short form below.