Intestacy Rules Unravelled: Why DIY Wills could cost your loved ones

Cohabitees

Many people incorrectly believe in the concept of a ‘common law spouse’ and that living together for a period of time would automatically entitle them to inherit from their partner’s estate.  This is not the case – the intestacy rules make no provision for cohabitees.  Cohabitees can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 but rather than causing stress and uncertainty at an already difficult time, making a Will is a much better option for the 6.8M^[i] people currently cohabiting in the UK.

Children

It is often assumed that all children who are treated as children of the family will be eligible to inherit under the intestacy rules.  However, the rules do not provide for step-children to benefit nor for foster children or for children who have not been legally adopted. Making a Will allows you to choose who is covered by the definition of children, or for better clarity still, name the children you wish to inherit from your estate.

Divorce and separation

Divorced spouses have no claim under intestacy rules, but people often don’t realise that separated spouses do, until a legal divorce (Decree Absolute) is finalised.  Whilst the position is the same where a spouse is named in a Will, a separated individual can make a new Will, excluding their former spouse, to ensure they don’t benefit.

Relationships generally

There can often be confusion about relationships within an extended family.  A common example is cousins – first cousins, second cousins, cousins once removed etc. or, that family member who you call ‘Aunty’ but isn’t a blood relative.  Again, to avoid the risk that family members who are important to you miss out under the intestacy rules, name them as a beneficiary in a Will instead.

When the rules apply

There is a general understanding that the intestacy rules come into play if you die without having made a Will.  However, people often aren’t aware that even if you’ve made a Will, if it is not carefully drafted, a partial intestacy can arise. A partial intestacy occurs when the estate has not been fully disposed of by the Will. For example, where a residuary estate is left to several individuals but doesn’t specify what should happen to the share of any individual who predeceases.  This highlights the risks of homemade ‘DIY’ wills and the importance of using a professional to make your Will, to ensure all eventualities are considered and covered by it.

Whether you deem your family circumstances to be ‘simple’ or more complex, making a Will provides certainty that your estate ends up with the people you want it to.  Taking time to plan now, could avoid disappointment and upset after your death. Contact a member of our Wealth preservation team for assistance.

[i] Office of National Statistics 2022