What Happens if You Die Without Making a Will?

It is a constantly worrying statistic that the majority of British adults are not in possession of a valid will. Those who are in this majority may be put of by a variety of factors; the most commonly cited of these tend to be a perceived high cost and the idea that their affairs are not complex enough to warrant such a document. The fact that you are reading this article implies that you are without a will, but are contemplating writing one.

You may have been faced by numerous reasons why you should write a will (many of these are covered on this site), but an excellent way of demonstrating the importance of this document is by outlining what happens when an individual dies without having made a will.

Intestacy Laws

When someone dies without a will, they are said to have died ‘intestate’. In these cases, there are laws that govern the way in which the affairs of the deceased should be dealt, and the way in which their assets should be distributed. These are called the intestacy laws. The first step in dealing with affairs of this nature is the appointment of an individual to oversee the process. A will gives the testator (the individual writing the will) the right to nominate an executor - the person who they wish to carry out this process. Intestacy laws, however, require that ‘probate’ be granted to a trustworthy individual. This is achieved by way of a Grant of Letters of Administration, a document which confers the right to carry out the same function as an executor. Of course, if you have not written a will then the individual in question may well not be the one you would have wished.

Disbursement of the Estate

The distribution of the deceased’s assets is the crux of the probate process. After the initial valuation of the estate, there is a very rigid set of rules dictating how these assets will be disbursed. If the deceased individual was married or in a civil partnership, then their spouse or civil partner will not be automatically entitled to the entirety of the estate. Rather, they will receive the first £125,000 of the assets tax-free (unless there are no children, in which case this figure rises to £200,000), along with personal effects. On top of this they will receive a life interest in half of the remainder of the estate. This means that, while the spouse or civil partner can derive benefit from this portion, it will pass automatically to the next descendant below in the intestacy ’chain’ after their death. This chain continues: if there are children then they will receive an equal share in the remainder of the estate, while this place will be taken by grandchildren if no children survive; if none of these parties exist then any surviving parents will take the share.

If there are none of the above parties surviving then any brothers or sisters will get a share (with notable exceptions: if they only shared one parent with the deceased then they will receive nothing), which will pass to the children of these siblings if they died during the lifetime of the deceased.

Finally, if none of these parties exist except a spouse or civil partner, they will receive the entire remainder.

For tax purposes, dying intestate can be disastrous; only the first £125,000 of the estate is tax-free, meaning that a surviving spouse or civil partner can be faced with an enormous tax bill. There are numerous cases every year of individuals being forced out of their family home due to their inability to pay this bill. Indeed, this problem can be even worse for non-married co-habitees; in these cases there is no tax relief at all.

It is possible to appeal against a probate decision if it is thought that an interested party has received unfair provision. However, this process is lengthy and complicated, and can lead to greater financial hardship in the short-term, particularly if the appeal is ultimately unsuccessful.