Intestacy are the rules around who inherits if someone dies without a will. If you die without a will your estate is shared equally between the children or their descendants of the deceased.
A will puts you in control. You choose who will benefit from your estate and what they are entitled to. You also decide who will administer your affairs after your death.
If you don’t make a will, the intestacy rules will decide who benefits from your estate and that can produce undesirable results. The law also sets a hierarchy of who is able to handle your financial affairs after death, and that can lead to problems if the person is not suitable because of age, health, geographical location, or for any other reason.
When you make a will through a suitably qualified professional, the chance of a problem or dispute arising after your death is reduced. Disputes arise more often when someone dies without a will, as certain people are entitled to apply to court to challenge the provision made by the intestacy rules, if they deem it unfair. For example, a long standing unmarried partner would receive nothing under the intestacy rules, so may have to consider making an application to a court to be awarded a share of the estate. There is huge stress and expense attached to such claims.
Whilst a will can also sometimes be challenged on the basis that it is unfair, the courts are generally more reluctant to interfere in the provision made by a will than that provided for by the intestacy rules.
It is often quicker, cheaper, and less stressful to administer an estate where there is a will. If you die without a will, it may be necessary for your estate to commission genealogical research to identify any lost or unknown relatives. That can be very expensive and time consuming.
A will also enables you to preserve assets for beneficiaries. For example, if you have property and/or business interests, you may want those to go to certain people, whilst leaving further assets to others. The intestacy rules provide for a division of your whole estate, so, if more than one person is due a share, can necessitate the sale of assets. This can cause problems and uncertainty for your staff if you have a business, and property may need to be sold despite it being the home of a particular beneficiary or other dependant.
A will can be used to ensure you make provision for those that need it, whilst protecting assets for other beneficiaries. For example, married couples can very easily set their wills up to protect a share of their home from being used to pay for care fees. This will give them the comfort of knowing the property is available for the survivor to live in for as long as it’s required. Equally, for couples who each have children from previous relationships, a trust can be used to ring fence a part of the estate for those children. Otherwise, the intestacy rules may result in all the marital assets being passed down to the surviving spouse, with the children of the first spouse getting nothing. This, in effect, produces a lottery, with the prize going to the children of the second spouse to die.
A properly drafted trust in your will could enable someone to manage the inheritance you leave to a disabled or vulnerable person, and may ensure the intended beneficiary does not lose his/her means tested benefits.
If you die without a will and a share of your estate is left to a vulnerable or disabled beneficiary, the person handling your estate may need to insist on someone applying to be their court-appointed deputy before paying out their share, a process that is both expensive and time consuming. This is because people who lack capacity are unable to give a valid receipt for their share of an estate.
You can nominate someone to act as a guardian for your children (if you die while your children are minors) and you can also record your funeral wishes in your will. These are things that people do not commonly discuss within a family, so formally expressing your views in a will can provide very helpful and practical guidance for those you leave behind.
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