What are the consequences of dying without a will?

Research shows that two in three UK residents do not have a valid will. What would happen if they were to die without one?

We are often told about the importance of having a will, but what are the actual consequences if we die without one? In order to find out we need to discuss what a will is and how not having one effects your estate and your family after you die.

A will is an essential part of any estate plan. It is vitally important everyone has an up-to-date will so that when you pass away, any unnecessary stress and pain can be avoided at an already difficult time for your family.

A will is the document that can determine:

• how you transfer your assets upon your death
• who inherits what and when they should receive it
• who manages your estate as your executor
• who is appointed guardian for your children

When someone dies without a will in place, strict laws come into force which establishes all of the above. This is called intestacy, and it can often lead to unnecessary stress for the family of the deceased.

What is intestacy?

Intestacy is the condition of the estate of a person who has died without a will. This law follows strict rules in relation to how an estate is divided. It is often not the most beneficial way to split an estate.

The rules of intestacy follow a hierarchy of who should benefit from the estate. This order is as follows:

• Spouse/civil partner
• Children/grandchildren
• Parents
• Brothers and sisters
• Grandparents
• Uncles and aunts

You can work out who will inherit what with this Government guide.

These intestacy rules, however, do not account for the modern family. There are many situations in which this could lead to problems for your family, and mean your wishes are not carried out.  These are a few of those scenarios:

You have no executor

The executor of your estate has many duties and responsibilities in relation to you and your assets. Some of these responsibilities include:

• Identifying and collecting all of the assets in your estate
• Paying all debts
• Applying for a Grant of Probate to the Probate Registry
• Finding and contacting any beneficiaries  
• Arranging for the distribution of the assets
• Tying up any loose ends, like cancelling credit cards and bank accounts etc.

This is understandably a very important job, and you will have to consider a few factors when appointing an executor.

If there is no will, there will be no executor appointed. In this instance, an Administrator has to be appointed by the Court to deal with the estate administration. A Grant of Letters of Administration will be issued by the Probate Registry to one or more of the people entitled to benefit from the estate under the Rules of Intestacy.

You have to apply for Letters of Administration if:

• There is no will
• A will is not valid
• There are no executors named in the will
• The executors cannot or are unwilling to act

However, there are strict rules about who can be an administrator. If there is no valid will, any next of kin can apply to be an administrator in the following order of priority:

• Spouse/civil partner
• Children/grandchildren
• Parents
• Brothers and sisters
• Nephews and nieces
• Another relative of the person who has died.

As you can imagine, this can potentially lead to disagreements and arguments in relation to how your assets are distributed. It may lead to members of your family you do not speak to acquiring some of your estate.

You do not select guardians for your children

A huge part of creating a will is to ensure that your children are taken care of after you pass away. This includes appointing guardians.

If both parents die and leave a child (or children) under 18, a guardian will take over responsibility for the child. They will have a duty to ensure the child is looked after and cared for.

If you are the only surviving parent and you do not choose a guardian for your children in your will, this decision could potentially go to the family courts. The courts often choose immediate family. This could again lead to potential issues with the rules not considering the modern day family.

Guardianship of a child automatically ends when the child reaches 18.

There is no opportunity to provide a trust for your children

A trust fund is a legal entity which is established for the purpose of holding your assets for the benefit of specific people. Children are often the beneficiaries of trust funds due to the fact that they can safeguard your assets until a certain time.

If you die before your child is 18, any assets left to them will be in trust. In your will, you can appoint a trustee – a nominated trusted person who will manage this trust. They will be in charge of safeguarding your children’s assets and inheritance.

You can also decide when you want your child to receive the assets in this trust. If you do not want your child receiving a lump sum of money when they turn 18 and wasting it, you can determine when you would like your trustee to distribute the assets. This can be when your child turns 25, 30, 35 etc.

In addition to this, one of the primary benefits of having a trust is that the assets held within it are protected from any legal claims.

Without a will, you will have no opportunity to set up a trust for your child, appoint trustees, or determine a suitable age for your child to receive your assets.

“Common law” relationships are not recognised

Many believe that “common law” spouses have the same rights as married couples when it comes to dividing assets. This is untrue.

Without a civil partnership or a marriage, you are not legally entitled to inherit if your partner dies without a will, no matter how long you have been cohabiting.

This is clearly out of touch with modern day relationships, but it is the current law, nonetheless. This is why is it so important for cohabiting partners to create a will.

You have no funeral arrangements

While any instructions that you leave in your will regarding your funeral are not technically legally binding, they are more often than not followed by your executor/family.

Many people have strong preferences when it comes to funerals. In your will you can leave instructions such as:

• Where your funeral should be held
• Whether you want to be buried or cremated
• Whether you want your organs donated
• Where you want to be buried
• Whether you want your ashes, kept, scattered or buried and if so, where
• What music you would like played at your funeral

This may seem trivial in the grand scheme of things, but do not underestimate how reassuring it is for your family to know your wishes have been carried out in relation to your funeral.

There is potential for more legal costs

Many people are deterred from creating a will due to the cost. However, not creating a will could potentially be far more expensive for you and your family.

Rectifying any disputes after your death can incur legal costs. Litigation is often expensive and time-consuming, and contesting a will is no different. Costs are in the discretion of the court.

Data shows that up to 10% of estate value is eaten up by costly legal fees each year where there is a dispute. To put this into perspective, if your estate is worth £200,000, your legal costs could equal up to £20,000.

How can Percy Hughes & Roberts help?

It is clear to see that there are more than a few negative consequences of dying without a will. At Percy Hughes & Roberts, we understand the importance of having an up-to-date will to avoid all of the headaches that your family may be put through after your death.

We have a team of expert will writing solicitors who are ready to help you start writing your will to combat any of these unwanted consequences.

If you need assistance with probate, writing a will, making a change to a will, or simply want general advice, our Wirral Wills solicitors have a wealth of experience.

If you would like to contact one of our expert solicitors, you can do so by calling 0151 666 9090 or by completing the “Quick Enquiry” form on this site.