Putting it off could mean that your spouse receives less
It’s easy to put off making a will. But if you die without one your assets may be distributed according to the law rather than your wishes. This could mean that your spouse receives less, or that the money goes to family members who may not need it.
There are lots of good financial reasons for making a will:
you can decide how your assets are shared out, if you don’t make a will, the law says who gets what
if you aren’t married or in a civil partnership (whether or not it’s a same sex relationship) your partner will not inherit automatically, so you can make sure your partner is provided for
if you’re divorced or if your civil partnership has been dissolved you can decide whether to leave anything to an ex-partner who’s living with someone else
you can make sure you don’t pay more Inheritance Tax than necessary
If you and your spouse or civil partner owns your home as ‘joint tenants’ then the surviving spouse or civil partner automatically inherits all of the property
If you are ‘tenants in common’ you each own a proportion (normally half) of the property and can pass that half on as you want
A solicitor will be able to help you should you want to change the way you own your property.
Planning to give your home away to your children while you’re still alive
You also need to bear in mind if you are planning to give your home away to your children while you’re still alive that:
gifts to your children unlike gifts to your spouse or civil partner aren’t exempt from Inheritance Tax unless you live for 7 years after making them
if you keep living there without paying a full market rent (which your children pay tax on) it’s not an ‘outright gift’ but a ‘gift with reservation’ so it’s still treated as part of your estate, and so liable for Inheritance Tax
from 6 April 2005 onwards you may be liable to pay an Income Tax charge on the ‘benefit’ you get from having free or low cost use of property you formerly owned (or provided the funds to purchase)
once you have given your home away your children own it, it becomes part of their assets; so if they are bankrupted or divorced, your home may have to be sold to pay creditors or to fund part of a divorce settlement
if your children sell your home, and it is not their main home, they will have to pay Capital Gains Tax on any increase in its value
If you don’t have a will there are rules for deciding who inherits your assets, depending on your personal circumstances. The following rules are for deaths on or after 1 July 2009 in England and Wales, the law differs if you die intestate (without a will) in Scotland or Northern Ireland. The rates that applied before that date are shown in brackets.
If you’re married or in a civil partnership and there are no children
The husband, wife or civil partner won’t automatically get everything although they will receive:
personal items, such as household articles and cars, but nothing used for business purposes
£400,000 (£200,000) free of tax or the whole estate if it was less than £400,000 (£200,000)
half of the rest of the estate
The other half of the rest of the estate will be shared by the following:
surviving parents
if there are no surviving parents, any brothers and sisters (who shared the same two parents as the deceased) will get a share (or their children if they died while the deceased was still alive)
if the deceased has none of the above, the husband, wife or registered civil partner will get everything
If you’re married or in a civil partnership and there were children
Your husband, wife or civil partner won’t automatically get everything, although they will receive:
personal items, such as household articles and cars, but nothing used for business purposes
£250,000 (£125,000) free of tax, or the whole of the estate if it was less than £250,000 (£125,000)
a life interest in half of the rest of the estate (on his or her death this will pass to the children)
The rest of the estate will be shared by the children.
If you are partners but aren’t married or in a civil partnership
If you aren’t married or registered civil partners, you will not automatically get a share of your partner’s estate if they die without making a will.
If they haven’t provided for you in some other way, your only option is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
If there is no surviving spouse/civil partner
The estate is distributed as follows:
to surviving children in equal shares (or to their children if they died while the deceased was still alive)
if there are no children, to parents (equally, if both alive)
if there are no surviving parents, to brothers and sisters (who shared the same two parents as the deceased), or to their children if they died while the deceased was still alive
if there are no brothers or sisters then to half brothers or sisters (or to their children if they died while the deceased was still alive)
if none of the above then to grandparents (equally if more than one)
if there are no grandparents to aunts and uncles (or their children if they died while the deceased was still alive)
if none of the above, then to half uncles or aunts (or their children if they died while the deceased was still alive)
to the Crown if there are none of the above
It’ll take longer to sort out your affairs if you don’t have a will. This could mean extra distress for your relatives and dependants until they can draw money from your estate.
If you feel that you have not received reasonable financial provision from the estate, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, applicable in England and Wales. To make a claim you must have a particular type of relationship with the deceased, such as child, spouse, civil partner, dependant or cohabitee.
Bear in mind that if you were living with the deceased as a partner but weren’t married or in a civil partnership, you’ll need to show that you’ve been ‘maintained either wholly or partly by the deceased,’ this can be difficult to prove if you’ve both contributed to your life together. You need to make a claim within 6 months of the date of the Grant of Letters of Administration.
