Drawing up a Will is one of those sensible things we always mean to do and never quite get round to. A bit like tidying up the loft.
But not having a Will – one that sets out clearly how you want your assets to be divided up – can, and often does, cause terrible family disagreements. Indeed, one of the best arguments for making a Will is that it avoids your loved ones having to argue amongst themselves about who gets what. No-one wants their final legacy to be resentment between siblings, parents and other family members or close friends.
So, what happens to your assets if you never get around to making a Will? It’s complicated, but very broadly it works like this.
Without a Will, your spouse or civil partner (but not your partner if you are not married or in a legal Civil Partnership) has what is called ‘Prior Rights’. That means that they would inherit the family home (up to a maximum value of £473,000), its contents (up to £29,000) and a cash sum of money – £50,000 if there are children and £89,000 if there are no children.
Bear in mind that, if you have children from a previous marriage, your surviving spouse doesn’t have to pass on any of these Prior Rights assets to your children in their Will. Indeed, if your spouse also has children from another marriage, then those children could inherit those assets leaving your children with nothing. In short, if you want your children to benefit, you need to make a Will.
If you are not married and have a partner (what the law calls cohabiting), unless you have a Will that says otherwise, your partner has no automatic entitlement to Prior Rights or any of your assets. Your cohabiting partner can make an application to the court for a share of your assets, but that is time consuming, involves cost and the outcome is not guaranteed. If an application is not made or is not successful, your estate would go to your children – which could mean your partner has to leave the family home.
Even if your house is in joint names, unless there is a survivorship destination clause in the title deeds (which means the property automatically transfers to the survivor on death), then your children would end up owning half the property with your surviving partner. Again, if you want to make provision for your cohabiting partner, it’s best to make a Will.
If there are assets left after the Prior rights have been exhausted, then what are known as ‘Legal Rights’ determine how the remaining estate is divided up.
In this case, your spouse or civil partner (again, not a partner with whom you are cohabiting) is entitled to receive one third of the remaining estate, or half if there are no surviving children. Any children also get one third of the remaining estate divided equally amongst them, or half if there is no surviving spouse. But how they agree what parts of that third or half go to whom can be cause of major disagreements. It’s far better to specify in your Will who gets what.
After that, your children, or your closest relatives, are entitled to the remainder of the estate.
Now this is only a brief summary of the law on inheritance (there are lots of potential complications we haven’t gone in to here for the sake of clarity), but there are two conclusions that seem pretty clear. Firstly, make a Will and secondly, deciding what your Will should say probably requires a bit more thought than you might imagine.
For more information contact Laurence Reilly on 0141 227 2211 or by email at laurence.reilly@clarkboyle.co.uk
