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Common Misconceptions of Intestacy

Published on 2 June 2021 | Modified on 14 December 2022

Written by Stacey Bennett
Poole Alcock

Drawing up a Will is the only way to ensure your assets pass in line with your wishes after you have died. The rules governing the distribution of assets when you die without a Will are complex and can result in disappointment and potential problems within the family.

When you die without leaving a Will, you die ‘Intestate’ and the rules to determine who gets what are known as the ‘Intestacy Rules’. People very often have misconceptions about this and here are some which could affect your family members:

Myth 1: Everything will pass to my spouse/civil partner

Many married couples assume that if they die without a Will, everything automatically passes to their surviving partner, but this is not always the case. Under the current rules, which were amended in February 2020, if there are surviving children of the deceased and the estate is valued at more than £270,000 the partner will inherit:

  • All the personal effects
  • The first £270,000 of the estate
  • Half of the remaining estate. The other half would be divided between the children.

Couples may own their home jointly. Either they are beneficial ‘joint tenants’ or ‘tenants in common’. ‘Joint tenants’ means that the surviving spouse will automatically inherit the other partner’s share of the property. With tenants in common, the surviving partner does not automatically inherit that share.


Myth 2: My unmarried partner will be taken care of

Married couples, or civil partners, inherit under these rules only of they are actually (ie legally) married or in a civil partnership at the time of death.
So if you are divorced, or your partnership has been legally ended, you can’t inherit under the rules.
Similarly, unmarried partners (sometimes called ‘common-law’ spouses), no matter how long they have been together, cannot inherit from each other.


Myth 3: My children will be looked after

The Intestacy Rules do not provide adequate protection for children for a few reasons.

The rules do not address who would look after any children in the event of both parents were to die before the children reached 18. In the absence of any formal appointment family members would need to apply to the Court to be granted guardianship. Such instructions can be set out in a Will which would mean that you can choose who looks after your children in the event of something happening.

Another potential issue is if you died without a Will, and are survived by your spouse, they could later draw up a Will excluding any benefit to the children.
Preparing a Will to set out your wishes for your children’s inheritance can be done to protect them from this happening.
Additionally you can stipulate when your children can inherit (eg: at the age of 18,21 or 25).

It is also worth noting that under the Intestacy Rules, there are no provisions for step-children or foster children (unless legally adopted).


What I need to do?

If you would like to discuss making a Will and be assured that it meets all your requirements then please do contact us today on 01270 613939 or by clicking here to arrange to speak to one of our expert Wills & Probate Solicitors.

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