Common misconceptions about intestacy

Common misconceptions about intestacy

There are many common misconceptions about intestacy and what happens if someone dies intestate, ie. without a valid Will. This can cause difficulties for a family after a death and may possibly mean that loved ones miss out on their inheritance. We take a look at some of the most common misconceptions and what actually happens when someone dies without leaving a Will.

Having a valid Will reduces the risk of disagreements and misunderstandings arising after a death. It gives a family the reassurance of knowing what the deceased’s wishes were and how they wanted their estate to be dealt with.

A husband or wife will inherit everything so there is no need to have a Will

Sometimes, people do not make a Will because they believe it is not necessary. One of the most common misunderstandings is that your spouse will inherit everything if you die without a Will. In fact, if you also have children, this is not the case.

Your spouse or civil partner will inherit the first £270,000 of your estate plus all of your personal possessions. The remainder of the estate will be split in half. One half goes to your spouse, and the other half is divided equally between your children.

This might not be the division that you want or the best option financially. You are advised to consider what you wish to happen and make a Will accordingly.

My family will know who is to look after my children if I should die

If you have not left a Will appointing a guardian for your children, then the court will decide who raises them. Consequently this might not be the individual you would have chosen yourself. This applies when there is no-one else with parental responsibility.

My home will pass to my spouse or partner

Depending upon the way in which your home is owned, it will not necessarily pass to your spouse or partner. Should the property be owned in your sole name, forms part of your estate and therefore will pass in accordance with the Rules of Intestacy. These rules dictate who will inherit an estate when no valid Will exists. An unmarried partner is not left anything under the Rules of Intestacy.

If you and your spouse or partner own a property together, what happens depends on the way in which your joint ownership is structured. Owning a property as joint tenants ensures the survivor will automatically own the whole property, should you die.

In the case of property ownership as tenants in common, your share passes in accordance with the Rules of Intestacy if you do not have a Will. This means that if you are not married, someone entitled to inherit your estate could try to force a sale of the property. Ultimately leaving your cohabiting partner in a difficult situation.

My common law spouse will inherit everything

Even if you have lived with someone for many years, they will not automatically inherit anything if you do not have a Will. They could consider making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This can be an expensive process and could potentially cost your estate a substantial sum of money.

My stepchildren will inherit my estate equally between them

Stepchildren are not included in the Rules of Intestacy. As a result this means they would not inherit anything if you do not leave a Will. As above, they could consider bringing an Inheritance Act claim. That is if they were treated as a child of the family by you or you maintained them.

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