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The Importance of Writing a Will

Despite everyone’s best efforts, research from the Probate Service in the UK shows that 57% of people still die without a valid Will.

Members of the family whom they had not seen for years, or whom they may no longer get on with, could take a substantial part of their assets - and be legally entitled to wind up their estate. Conversely, close relatives or those whom they did get on with could lose out on property that should have been passed on to them.

A further estimated 19% of UK adults have had a substantial change in circumstances since drawing up their original Will - but have taken no action to update it. Even if you have a valid Will, the chances are that you know someone who could well die without one.

Dying without a Will can cause serious problems - and unwanted stress - for surviving relatives. 

Co-habiting couples, for example, could see their home sold against their wishes if both names are not on the title deeds. However, no matter what your marital status, you could stand to lose out.  Legally, a surviving spouse has no automatic right under current UK law to inherit all their spouse's property. Additionally if a Will is not updated after a separation or second marriage, the family home could automatically pass to the ex-husband or ex-wife leaving the current partner and children with no automatic right to reside at the property.

When someone dies without a valid or comprehensive Will, they are called intestate. The disposal of property, known as probate, is called administration in these cases. Each probate case is different and the time it takes will depend on its complexity, the types of assets, legal or tax complications, as well as other factors.

The property belonging to such a person is inherited according to a strict set of rules commonly known as the intestacy rules. Instead of the property going to the person's chosen beneficiaries, it is left to other relatives in a particular order.

If, as is usual, the Will contains a valid residuary gift, a partial intestacy is avoided. A residual gift is one which ensures that all the remaining property not specifically dealt with in the Will (the residue) passes to chosen beneficiaries nominated by the person making the Will (the testator).

Effectively, intestacy rules impose a trust over all the property not provided for in a Will. This trust imposes duties and gives certain powers to the PRs (personal representatives appointed to manage the estate when someone dies intestate). The PRs pay the funeral and administration expenses and any debts of the deceased. The balance remaining (after setting aside a fund to meet any cash gift left by the deceased in the Will) is the residuary estate to be shared amongst the family under the rules of distribution.

The PRs have the power to use assets towards satisfaction of a beneficiary's share with the beneficiary’s consent. Personal assets must not be sold without special reason. In other words, where money is required to pay debts or expenses and there is a shortage of funds in the estate, the PRs would be entitled to sell any possessions and property belonging to the deceased.

The right of a person to benefit on intestacy depends on their relationship with the deceased and whether any closer relatives have survived. The general principle is that the estate is shared by the relatives in the highest category, to the exclusion of relatives in a later category - but it is more complicated if there is a surviving spouse.

Who inherits if there is no Will :
http://www.hmrc.gov.uk/cto/customerguide/page14-1.htm

Actual intestacy examples :
http://www.magnacartawills.com/#/actual-intestacy-examples/4535536416

This information was put together with the input from Magna Carta Wills, an ethical Will writing, probate and intestacy service based in Stratford upon Avon. For more information please call their free Probate helpline on 0845 126 0891 and quote Ref WW3422.

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