The Potential Pitfalls of Dying Intestate

07 Nov 2016

It is, of course, very common for couples to live together without being married and indeed for children to be born into such relationships.

The importance of having a Will cannot be underestimated

Without a Will the surviving partner in such relationships will not be entitled to inherit under the Intestacy Rules which can lead to a very unsatisfactory and potentially painful outcome with regards to the devolution of the deceased’s assets.

In the absence of any children the deceased’s parents will be entitled to the deceased’s estate.  In the absence of surviving parents the deceased’s siblings will share the estate.  Further rules determine who is entitled to the estate in the absence of siblings all the way through to the Crown in the absence of any qualifying relatives.

This can lead to financial hardship for the surviving partner and where the house is involved serious problems can arise if the same was owned by the couple as tenants in common.

The deceased’s share in the property will form part of the estate passing under the Intestacy Rules so, typically, a half share in the property can end up in the hands of relatives with the obvious consequential issues.

If there are children from the unmarried relationship they will share the deceased’s estate.  Although perhaps preferable to more distant relatives inheriting, this can still lead to problems with regards to the home and the potential of a forced sale.

In certain circumstances the surviving partner may be left having to consider a claim against the deceased’s estate but it is a far from a satisfactory position to be left in.  

If Wills are put in place by an unmarried couple the position must be kept under review if they subsequently marry. 

The effect of the marriage is to revoke the earlier Wills (assuming they were not originally made in contemplation of that marriage).

Often without realising, the couple in question are, effectively, intestate.

In one notable instance a sizeable estate proved not only costly and time consuming to administer but lead to broken relationships when one of the spouses died leaving children from a previous relationship.

The Intestacy Rules came into play as the Will the deceased had put in place to ensure his partner (now surviving spouse) was properly taken care of was invalid by virtue of their subsequent marriage.

Instead, the Intestacy Rules determined that the surviving spouse was entitled to £250,000 (and the personal possessions) and only half the remainder of the estate with the other half passing to the children from the previous relationship immediately.  Problems can surface quickly when the bulk of the deceased’s assets are included within a tenant in common share in the matrimonial property and the children have their eyes on their inheritance!

It should be noted that the position will be different for assets held as joint tenants;  these will pass outside of the terms of the Will to the surviving joint owner by survivorship.

An up to date valid Will can help ensure that your wishes are properly catered for and that the complexity of the Intestacy Rules are overcome.   


DMH Stallard have a dedicated Private Client specialists who can advise on this and other  personal matters. For more information contact:

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