Establishing if a Will exists
Before we consider what happens if you die without a Will, it is vital to stress the importance of looking thoroughly to establish whether a Will does exist.
This will involve looking through the deceased’s personal papers and contacting any law firms and banks with whom they had dealings.
You can ask the local Law Society to make enquiries about its members by sending a request, together with details of the deceased’s name and address.
There are several places where people commonly store their Wills. The Solicitors Regulation Authority stores some Wills, as does the Principal Registry of the Family Division of the High Court, the Society of Will Writers, and the National Will Register. Write to each of these, keeping copies of your letters and any responses you receive.
Administrating someone’s estate after death can be relatively straightforward if they have left a Will. Besides being able to control what happens to your property, a Will can also save your heirs’ considerable expense and inconvenience at an already stressful time.
What happens if the original Will can’t be found?
If a Will has been mislaid or inadvertently destroyed, it doesn’t necessarily mean that Probate will not be granted.
Applying for Probate with a copy of the Will
If the Will cannot be found, as a last resort, you can apply for Probate with a copy of the Will; however, the courts will require you to provide strict evidence to support the case that what you provide is a complete and valid copy of the original Will. You will need to provide the following documentation to support your case:
- Evidence that the copy is true and complete.
- Evidence that the Will was properly executed.
- Any known details of the loss or accidental destruction of the Will.
- A written agreement of those who will lose out financially if the copy Will is accepted, ie. those who would otherwise inherit under the Rules of Intestacy.
- Evidence that the Will wasn’t intended to be revoked.
- The original copy that you have found, i.e., not a copy of the copy.
It can be helpful to use an experienced Probate solicitor to help you put together convincing documentation for the Probate Registry.
Even with this evidence, there is no guarantee that they will issue a Grant of Probate. If they do not, then the estate will pass under the Rules of Intestacy or in accordance with any previous Will.
Again, this highlights the importance of storing your Will securely and making your loved ones aware of its location.
What happens if you die without a Will in the UK (England & Wales only)
If you die without a Last Will & Testament (or with a Will that is not legally valid or can’t be found), then you die ‘intestate’ and your property (the estate) must be shared out according to the rules of intestacy. These rules are firmly based on the following relationships:
If there’s a partner, either by marriage or civil partnership; and children.
The spouse of the deceased will receive everything up to the value of £322,000. Further, they shall receive all the deceased’s personal items (chattels).
Any remaining amount over the initial £322,000 allowance is split in two. The first half is split equally between the deceased’s children when they turn 18; the other half goes to the spouse.
If there’s a partner, either by marriage or civil partnership; but no children.
The spouse of the deceased receives the estate in its entirety. Under the rules of intestacy, no other family members are considered.
If there is no partner, either by marriage or civil partnership; but there are children.
The children will inherit the estate in its entirety. This will be split equally between siblings with each receiving their share when they turn 18. Adopted children can inherit; stepchildren cannot.
Under the rules of intestacy, partners are not considered unless they are married to, or in a civil partnership, with the deceased.
If there is no partner and no children.
The parents of the deceased inherit the estate. If the parents are already deceased, then the estate passes, in order, to the following family members:
- Brothers and sisters (or nieces and nephews if siblings have died before you).
- Uncles and aunts (or cousins if uncles and aunts have died before you).
If there are no living relatives
The estate passes to the Crown in its entirety.
Who cannot inherit under the rules of intestacy?
It is important to note that current intestacy rules don’t allow the following groups to inherit:
- Unmarried partners.
- Relations by marriage; for example, stepchildren.
- Close friends.
Dealing with an intestate estate can be very stressful and time-consuming. Indeed, it can take months to figure out what needs to be done and can involve tracing family members, regardless of their geographical location, to build an accurate family tree, costing considerable time and money.
What are some important realities of not leaving a valid Will behind?
It is worth considering the following realities of intestacy rules:
- If there are no surviving relatives, the estate passes to the crown – this means that any friends, unmarried partners, or charities of your choice will miss out on benefiting from your estate.
- Financial dependents who don’t inherit under intestacy rules would have to claim under the Inheritance Act before getting support.
- It does not consider special requests from family members. All personal possessions will be divided as above, even if the deceased promised specific items to their family.
If you think these rules would affect who your estate ends up with, it is prudent to write a Will. This will ensure that your money, property, and possessions are divided according to your wishes.
Bringing a claim against an estate
If you do not make a Will, then it is more likely that those who depend on you could bring a claim against your estate. Under the Inheritance (Provisions for Family and Dependants) Act 1975, anyone who is financially dependent on the deceased can make a claim for ‘reasonable financial provision’. This may include:
- A Spouse.
- A Former spouse (providing they haven’t remarried).
- A Child (regardless of their age).
- A Stepchild or former stepchild.
- Someone who was living with the deceased for at least two years leading up to their death.
- Any person who was financially dependent on the deceased at the time of their death.
Making a Will with ELM Legal Services
It is important that everyone makes a Will before they pass away to ensure their estate is inherited by the people of their choice.
You can have your Last Will & Testament drafted by a solicitor; however, this may be costly as they usually charge by the hour. Alternatively, you could use a specialist Will writing firm such as ELM Legal Services, who will provide a quality service, at a fraction of the cost.
Making a Will does not need to be stressful or time-consuming; here at ELM Legal Services, we offer an online consultation process whereby you can meet with an estate planning specialist via webcam, to discuss your needs and wishes.