The Reasons for Making A Will

The main reason for making a will is to ensure that you make the choice as to who you leave your possessions, and not the state. You can impose any specific conditions you want in your will. For example, you can impose age conditions or conditions relating to the need to perform certain duties before benefiting.

If you do not make a will then, in your death, the law of intestacy will apply to the disposal of your estate. You will have had no say and certain criteria are applied by the state, which will take responsibility.

In the circumstances described above, after costs such as funeral and administration of the aspects of death, an order of preference is established, as follows:

Your spouse, which is your husband or wife
Any children you may have. This includes all children, whether by marriage, legitimate or adopted
Parents
Brothers and sisters
Half brothers or sisters
Grandparents
Uncles and aunts
Half uncles and aunts

It is the law of intestacy that if any of the above, in that order, die before the person who is the subject of intestacy, then their children will automatically benefit in their place.

There are conditions which will affect the above order of beneficiaries:

If the spouse of a person is still living and there are no surviving children, parents, brothers or sisters or any of their offspring living then the spouse will benefit solely

If the spouse is still living and there is children, the estate will be divided along the following lines:

The spouse will take all personal items and up to £75,000 if money is involved. This will be augmented by interest on the money from the date of death. There will be a life interest in half of the residue of the estate. This means use as opposed to ownership. In the case of money it relates to interest on capital only and not the capital itself;

Children (equal shares): Half the residue of the estate plus the other half on the death of the spouse.

If the spouse is still alive, there are no children but there are other relatives, such as parents, brothers and sisters and their children, the following apply:

The spouse will have all the personal items and up to £125,000 if it is available, interest on money and half the residue of the estate;

Parents will receive half the residue or, if there are no parents alive then brothers and sisters will, in equal shares, keep half the residue.

By law, the spouse is entitled to carry on living in the matrimonial home after death. The matrimonial home is defined as the place where he or she had been living at the time of death.

If there is no spouse living but there are children then the estate will be divided equally among them. This will occur when they are over the age of eighteen or marry, whichever occurs first.

If there is no spouse and no children but there are parents, then the estate will be divided equally between them. If there is no spouse, no children and no parents, then the estate will be divided equally between brothers and sisters. If there are no brothers and sisters then half brothers and sisters. If none, then grandparents. If not, uncles and aunts and if none to half blood uncles and aunts.

As can be seen, the law of intestacy tries to ensure that at least someone benefits from a person’s possessions upon death. There is a ranking order and in most cases there would be someone to benefit. There are certain categories of person who fall outside of the law of intestacy, even though there may have been some connection in the past:

Divorced and separated persons

There is no right of entitlement whatsoever for a divorced person to benefit from an estate on death. This right ceases from the decree of absolute.

If a separation order is granted by a divorce court then there is no entitlement to benefit. If the separation is informal and there is separate habitation or a Magistrates court order has been granted for separation then there is normal entitlement.

Cohabitation

The law of intestacy dictates that, if you were living with someone, but not married, at the time of death, then that person has no direct claim to the estate. However, in practice this operates somewhat differently and there is a law, Provision for Family and Dependants Act 1975 under which cohabitants can claim.

Although anyone has a right to have their estate distributed in accordance with the law intestacy, it is highly inadvisable. It is better at all times to ensure that you have complete control over where your money goes. It may be that you do not wish immediate family to benefit over others and that you wish to leave all your money to a particular favoured person or to an institution. This can only be achieved by personalising your will and remaining in control of what happens after your death.