Creating a will is an important milestone in everyone’s life, and is something which everyone should consider, regardless of age. But what is a will and why is it crucial to have one?
A will is a legal document which outlines how you would like your assets distributed after you pass away. It’s important to have one because if you pass away before creating one, your personal property, possessions and money may not be handled as you wish. This can lead to complex legal disputes between family members and friends as they work out a fair split for the inheritance, adding unnecessary stress during a highly sensitive time.
To help shine a light on what you need to know about wills, probate, and what can happen if you don’t have a professionally crafted legal will, we’ve sat down with Molly Graham, Solicitor in our wills and probate team, to provide her expert insight into some of the most commonly asked questions surrounding these areas of law.
Q: What happens if someone dies without a will?
A: If you die ‘intestate’ – which means without having made a will – the intestacy law will divide your estate equally among your legally recognised relatives. This includes a spouse, civil partner, and/or child(ren).
However, this may not always be what you desire, and can create tension among each of the respective parties if they feel this equal split is unfair. Additionally, intestacy law does not cover stepchildren, unmarried partners, friends, and charities, meaning that many of those who are close to you may be left with nothing after your passing.
Q: How does intestacy law affect the distribution of assets?
A: How intestacy law distributes your estate depends on which family members the inheritance needs to be split between.
If both a spouse and the children have a claim to the inheritance, it is usually split into two. One half, including all personal possessions, for your partner, and the other half is divided among your children.
If you are without a spouse or children, then any other surviving relatives will inherit your assets. This is decided by an order of priority, with closest relatives first, followed by more distant family. If there are no relatives to claim your estate, your assets will go to the Crown.
Q: What specific challenges arise in administering an estate without a will?
A: The probate process, which involves the distribution of your estate among beneficiaries, does not vary too much whether a will is present or not. However, without this document in place, you lose all control over how your estate is broken up. For example, a family member who has been a part-time carer throughout the later stages of a parent’s life will receive the same amount of inheritance as an estranged family member. This could lead to friction between families and unnecessary court and legal fees if a court is needed to resolute a legal dispute.
If you are a relative of a person who dies intestate, you can make an application to the court for a ‘grant of letters of administration’. This needs to be done within the first two years of your relative’s passing, after which the law will begin to distribute the estate automatically. There cannot only be one administrator – there must be a minimum of two, up to a maximum of four.
Q: Please explain the probate process further when someone dies without a Will
A: To gain a letter of administration, you must have details of everything the deceased owned, how much it is worth, and any outstanding debts. This information is then used to fill out the necessary Inheritance Tax Returns forms. You will then be able to gain a full picture of the amount of tax that is owed to HMRC.
Alongside these tax forms, the application also requires the original death certificate for the deceased, as well as a fee that to be paid to the Probate Registry for their service.
If approved, the applicant(s) will be appointed as administrator(s) of the estate. This grants them with the legal authority to deal with the estate, which can require access to the deceased’s private information.
When undergoing probate in this scenario, it is extremely complex, and mistakes are much easier to make.
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Q: How can potential disputes or complications be mitigated in the absence of a will?
A: Having multiple administrators avoids disputes by allowing more of the deceased’s loved ones to have their interests represented, especially if the estate is complicated. However, third-party advice from a solicitor is also recommended. They can act as an unbiased party and consultant for any legal queries the administrators and their loved ones may have.
When someone passes away it can be an extremely difficult time for all those involved in the individual’s life. To avoid undue stress and worry, everyone should have a will in place, meaning that when someone passes away, their friends and family are able to honour their memory with peace of mind, knowing that there is a plan in place for handling their estate.
If you need help and support on matters concerning wills and probate, our team of specialists at Thomas and Thomas Solicitors provide a comprehensive range of Will services. For further support and advice, contact us here.
