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Facing up to making a Will

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Nobody wants to dwell on the inevitable, but, as the saying goes, only three things in life are certain: birth, taxes and our inevitable demise at the end of it all.

Making plans for when we’re no longer around can often be a taboo subject and one that many will avoid thinking about, never mind discussing it with friends and family. Ultimately though, it is friends and family who could suffer because of our reluctance to confront our own mortality.

Recent figures suggest that more than half of the UK population have not made a will. This can lead to a number of complications for families and married couples, but especially when concerning co-habiting couples.

If someone dies without making a Will (which is called dying intestate), then Intestacy Rules will be used to decide who should receive your property. These rules can have complicated implications leading to uncertainty and unfairness when someone dies. Sometimes your legally recognised next of kin is not the person whom you would wish your estate to pass.

The simple solution is for you to make a Will. This is something everyone should consider – not just the elderly or the rich.

Perhaps you have children of a young age. No one wants to think about dying before their children have reached adulthood, but by considering this prospect, you can provide financially for your children and appoint guardians to look after them if necessary. Provisions for guardians will not take effect until there is no surviving person who has parental responsibility for your children and if you are an unmarried father, you cannot appoint a Guardian unless you have had care of your child immediately preceding your death.

If you are contemplating or going through a divorce, your spouse will remain your next of kin until a Decree Absolute is pronounced. If you die without making a Will before the final decree, your spouse will be entitled to your property according to the Intestacy Rules, which may not be your intention. This will include the first £250,000 and a “life interest” in half of whatever remains. If children are involved they will only receive inheritance if the estate is worth over £250,000, which is larger than most families might expect.

Decree Absolute ends an ex-spouse’s entitlement unless a new Will makes specific alternative provision, and any provision making your spouse executor will be ignored, with another executor being appointed. 

If you simply live together, your partner is not your next of kin according to the Intestacy Rules, meaning when you die they are not automatically entitled to your own property. When someone dies without a Will, it is not guaranteed that their wishes will be met. For example, if your partner is still legally married to someone else, the ex-partner will inherit the bulk of the estate according to the Intestacy Rules.

There is a misconception that such individuals are protected by ‘common law’. This is not the case. Co-habiting couples have far fewer rights than couples that are married or in a Civil Partnership in relation to shared assets, particular those that might be “owned” in the sole name of one partner.

When one partner dies, co-habiting couples are treated as separate individuals and have no legal standing as a couple. They are entitled to the share that they legally own of joint property in both of their names. For example if a property is held as tenants-in-common in shares of 60 per cent to 40 per cent, that is how the money would be divided after a sale. A property held as a Joint Tenancy would transfer completely according to the rules of survivorship, although the “Inheritance Act” allows, under certain circumstances, for this automatic transfer to be stopped so that you can make a claim against it.

If no provision is made and your partner has been living with you for more than two years immediately preceding your death, they could apply for a share of your estate under the Inheritance (Provision for Family and Dependants) Act 1975.  This can be a complex area of law. There is no guarantee of success and legal costs could be incurred your partner could ill afford. Any claim under the Act must start within six months of the Grant of Probate being obtained, or you may lose your right to do so. If you think you may be entitled to bring a claim, you should seek legal advice urgently. 

All said and done the only way to ensure that your partner receives the benefit of your property is to make a Will before it’s too late.