Dealing with the death of a loved one is never easy and managing their financial affairs and assets after they’ve passed can be difficult, especially when emotions are high or if there are conflicts in the family.

We wrote a blog in June about the need to have a valid Will, but we only briefly touched on how they help with the probate process.

Here, we explain more about probate so that you can better understand what happens when a person dies without a valid Will in place.

What is probate?

Probate is the name given to the legal process that happens when someone dies.

If the deceased person made a Will, a solicitor would first determine whether it is valid. If it is, the nominated executors apply for Grant of Probate. This gives them authority to pay any taxes and debts before distributing the deceased’s estate as per the instructions set out in the Will.

If the person died without making a Will, or with an invalid Will, this is known as dying intestate. This means assets are divided up as stated by the law, not necessarily as the deceased would have liked. It also makes probate longer, more complicated and more costly.

What happens when someone dies intestate?

If someone dies without a valid Will, their estate is distributed as per the rules of intestacy. This means that someone who expected to inherit may not, and someone who the deceased or their family feels should not benefit, may be entitled to a share.

Rather than an executor applying for Grant of Probate, a probate court issues a Grant of Letters of Administration to people who apply for authority to deal with the estate. These are usually beneficiaries and there is an order in which applications are considered, beginning with the spouse or civil partner then the children of the deceased. A Grant of Letters of Administration essentially gives the same rights as a Grant of Probate but adds unnecessary expense, time and complication.

Even with a Grant of Letters of Administration in place, the estate must still be divided up as per the rules of intestacy, so we’ve covered that below.

What are the rules of intestacy?

The rules of intestacy currently state that the person’s spouse or civil partner (even if they’re estranged) inherits all of their possessions and the first £270,000 of their estate. If the estate is valued at more than £270,000, the remaining inheritance is divided with the spouse or civil partner inheriting the first 50% absolutely of the estate valued more than £270,000. The remaining 50% is shared equally between any children.

This means that cohabitants, stepchildren (unless adopted) and grandchildren will only inherit if there is no surviving spouse/civil partner or children, which may not be what the deceased person or their family would have wanted. It also means that charities and causes close to the heart of the deceased will not benefit unless a gift is made by a family member from their share.

Can I contest the rules of intestacy?

If you’re not provided for, for example if you lived with the deceased but were not married or in a civil partnership or if you have inherited but feel you should have received a larger share, you can make a claim under the Inheritance Act 1975. This is a lengthy, costly and stressful process with no guarantee of getting your desired outcome.

You can give up all or part of your own inheritance with a Deed of Variation if you want to make the distribution of the estate fairer, minimise inheritance tax or ensure someone not covered by intestacy rules is provided for.

An estate passes to the Crown If there are no relatives able to inherit under the rules of intestacy.

Does dying intestate mean a bigger inheritance tax bill?

Inheritance tax is a complicated area, but we have known cases where estates shared by the rules of intestacy are subject to more tax. This is because the law dictates who inherits what, whereas a person making a Will may include it in their financial planning and minimise what needs to be paid on their death.

Our recommendations

We recommend making a Will with a solicitor and keeping it up to date. This will ensure your personal and financial assets are distributed to those you want to benefit, and stress and uncertainty for the loved ones you leave behind will be minimised. They’re usually cheaper and quicker to create than people imagine, and you can include other details such as wishes for your funeral and who you would like to care for children and pets.

Everyone should make a Will, but we emphasise that cohabitants are at risk of not inheriting unless they’re married (and the marriage must be lawfully recognised, which not all faiths are) or in a civil partnership. In the eyes of the law, it doesn’t matter how long you have been or couple or even if you have children together, there is no such thing as a common-law marriage giving automatic legal rights over a partner’s estate.

We know from experience that families often disagree over who should inherit what but, if your wishes are clearly laid out in a Will, relationships are less at risk of breaking down through jealousy and arguments.

Remember verbal promises mean nothing in the court, but a Will is a legally binding document for which there is no substitute.

Call us on 0116 340 0094 or email hello@agrlaw.co.uk to find out more about our Will writing service. 

Why do I need a Will?

One of the most common misconceptions we come across is that people feel they are too young, too healthy or not rich enough to make a Will.

Anyone over the age of 18 can, and should, make a Will because the consequences of dying without one makes things difficult for those left behind.

What happens if you die without a valid Will?

When a person dies without a Will, or with an invalid Will, it is called dying intestate. Your estate will be divided up as per intestacy rules, which are determined by the court, rather than to your wishes. This makes the probate process more expensive, complicated and challenging.

The court will decide how your property, possessions and money are distributed. Even if you promised assets to relatives or loved ones, they might not inherit without a Will in place but someone you did not want to benefit may do so.

We cannot stress enough that is not the case that co-habiting partners have automatic right to make a claim, even if you have children, jointly own your home or have been a couple for a lengthy period. This could create financial issues for the surviving partner and possible conflicts within your family as they argue over who should be entitled to what.

What goes in a Will?

  • Property and assets – You can ensure items of high sentimental or monetary value are gifted to those that are most important to you
  • Debts – Details of your mortgage, loans, credit cards, overdrafts etc
  • Children and pets – You can name a guardian to take care of young children and create trusts to ensure they are financially secure. You can also ensure any pets you leave behind will end up in the hands of someone who will love them like you do
  • Your funeral wishes – You may want to be buried in a particular spot or be cremated and have your ashes scattered in your favourite place. You can state this, plus your wishes for your funeral, in your Will
  • Gifts and donations – You can leave money to charities you support in your Will to help them raise much-needed funds and continue the good work they do. There may be tax benefits to doing this too
  • Your executors – These are people tasked with distributing your estate. They can be family members or friends. It’s a big job and it’s important that you can trust them, so choose carefully

How often should I update my Will?

Wills never expire, but we advise you review yours every three to five years or as circumstances change. Marriages, breakups and the birth of children can mean changes need to be made to ensure the correct people are looked after and protected when you die. Any alterations must be witnessed as per the rules below.

 When is a Will valid?

For a Will to be deemed valid, you must have sufficient mental capacity to:

  • Know what assets you own
  • Understand the effect of your Will – what will happen when you die and the consequences of including/excluding people
  • Approve the content of your Will
  • Know that you are signing it
  • Follow the correct procedure for witnesses. It must be witnessed by two people aged over 18 with sufficient capacity to understand what they are acting as witnesses to. They must not be beneficiaries of the Will, so can’t be spouses, partners or family members

A Will can be challenged and deemed invalid if any of the above rules aren’t followed. If the challenge is successful, the person’s previous Will (if it was valid) will apply. If no Will was made previously, they will have died intestate.

What role does AGR Law play?

A Will is a legally binding document, so we always advise using our services to ensure there are no mistakes which could make the Will invalid.

Some Wills are more straightforward, but there are circumstances which make Wills complicated. These include:

  • Where you share a property with someone you are not married to or in a civil partnership with
  • You have a dependant who is unable to care for themselves
  • You have a large family who may make a claim, such as children from a previous marriage
  • You do not reside permanently in the UK or if you do live here but have property overseas
  • You own a business or businesses

Our experienced team will guide you through the process, so you can be safe in the knowledge that your assets will be protected after your death.

What is Lasting Power of Attorney?

What is LPA?

We wanted to briefly mention LPAs as they’re often drawn up at the same time as Wills. Lasting Power of Attorney (or LPA) gives a nominated individual the right to handle your personal business if you lose mental capacity. If you are married or in a civil partnership it is not the case that your spouse will automatically be able to deal with matters for you.

There are two types of LPA – one related to your finances and property and the other to your health and welfare.

Why do I need an LPA?

Life-altering illnesses or accidents can mean you are no longer able to manage your financial affairs or look after yourself.

If you lose the ability to make your own decisions your chosen attorney could:

  • Pay your bills, sell your property or investments and operate your bank accounts
  • Make decisions about your daily routine, your medical care, where you live and, if specified in the LPA, any life-sustaining treatment

What if I lose mental capacity but don’t have an LPA in place?

Without an LPA in place, your family will need to apply to the Court of Protection to have a deputy appointed. This can be a slow, costly and stressful process, and a deputy’s powers are limited compared to someone appointed through an LPA.

Want to know more about Wills and LPAs? Drop us a line at hello@agrlaw.co.uk or call us on 0116 340 0094