Lasting Power Of Attorney

The PERILS of BEING AMONGST the TWO THIRDS of US WHO DIE INTESTATE

WHAT THIS ARTICLE is ABOUT

Two thirds of adult Brits don’t have a will. To ‘die intestate’ is to expire without one. That could be a terrible mistake, not least because the majority of the legislation which determines how assets are apportioned when there’s no will is almost a century old. So it doesn’t reflect the reality and complexity of many modern relationships. And, even if the law had changed with the times, you might well be horrified at the consequences of not sitting down to think about your legacy.

The UK’s RECENT and SIGNIFICANT SURGE in UNEXPECTED DEATHS

For anyone who wants to attempt to calculate the likelihood of their own death sometime soon then the Office for National Statistics has a wonderful resource at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/datasets/deathsregisteredinenglandandwalesseriesdrreferencetables (this is the last set of data available, as I write, for 2017). But the truth is that most of those in graveyards had little intimation of their impending demise.

And, actually, our ability to predict death is getting worse and not better. In March 2018 ‘The Independent’ reported that ‘10,000 more people than expected died at the beginning of the year in the UK – and no one really knows why’. See www.independent.co.uk/voices/england-wales-mortality-health-medicine-nhs-death-rate-a8256931.html. This is bad news indeed. Clearly it’s not bad news for me. Or you since you’re reading this. Yet it’s bad news for anyone who was amongst those 10,000 people. And their friends and relatives. Not just because of the loss of life. But because many of those who are not expecting to die won’t have left a will when they unexpectedly did.Create A Will

 

WHY PLAN on an UNCERTAIN LIFE but NOT on a CERTAIN DEATH?

None of us wants to be a doom-monger. Yet it is a sad fact that we’re all doomed. And, though we all plan meticulously for an uncertain life we often neglect to plan for a certain death. Interestingly even the Office of National Statistics has no data on precisely how many UK residents die intestate (leaving no will). See www.ons.gov.uk/aboutus/transparencyandgovernance/freedomofinformationfoi/deathsintestate. But it’s a lot. The Financial Times thinks it’s about two-thirds of us (see www.ft.com/content/81212cfe-4322-11e4-8a43-00144feabdc0; it cites research by Investec Wealth & Investment). 

 A GLIMPSE into WHAT MIGHT GO WRONG

We’d all like to think that those we leave behind would sort it out if we haven’t organised a will. But here are just a few examples of the current intestacy rules:

  • Only married or civil partners can inherit from you. Any other partners including supposed ‘common law’ spouses have absolutely no rights. It doesn’t matter if you’ve been together for aeons and everybody considered you to be inseparable
  • Nor does it matter if you’ve had 20 children together; if you’re not married or civil partners then the survivor has no rights to assets
  • There would be no provision for any step-children you have, no matter how long they have been your step-children and no matter how much love and/or care you’ll have demonstrated for each other

Of course it is always possible that the situation might be complicated by adoptive, fostered or illegitimate children. These possible beneficiaries could include people you care for – or would care for had you been aware of their existence.

More to the point, the sad fact is that those around you may not behave well after you’ve passed away. They may not respect your wishes if those wishes are not recorded in a will. And, in your absence, they may well not respect each other.

NOT SCAREMONGERING

This is not scaremongering. The British Government’s advice is to be found at www.gov.uk/inherits-someone-dies-without-will and you’ll see that this takes you on a step-through guide to what would probably happen if you died intestate. It begins by sending you down separate trails according to whether you’re resident in England and Wales or Scotland or Northern Ireland.

A GENERAL GUIDE

There is a pecking-order if there’s no will. In England and Wales that’s governed by The Administration of Estates Act (1925). And the pecking-order’s something like this:

  • Any married or civil law partners get the first £250,000 (importantly this is less than the average UK house-price, meaning a home might need to go under the hammer) including possessions
  • After that anything else is halved between the aforementioned partner and any kids as soon as they’re over 18
  • If there’s no married or civil law partner and no kids then parents are next in line
  • Siblings are next
  • Grandparents are next
  • Uncles and aunts are next
  • Any other living blood-relatives could follow
  • Her Majesty’s Government – the Crown – is the final resort.

In any event any party that inherits may well be left to deal with any unsettled liabilities that you’ve racked up. And any such entitlement is sometimes going to be contentious, something that could further deplete whatever you leave behind.

THIS is IF YOU DIE INTESTATE. YET WITH a WILL YOUR WISHES SHOULD be RESPECTED

With a will you at least set out, for the record, what you want. Though you should remember that a will can be challenged. If you want to leave everything to your cat, and nothing to your wife or kids, then your sanity or fairness might be questioned. And on that basis your will could be overturned.

YOU DON’T NEED a SOLICITOR – THOUGH it MAKES SENSE to HAVE ONE

You can write your own will, a voluntary declaration, and have it signed by two witnesses who are not – and could not be – amongst the beneficiaries. But if there is any complication, any chance of your wishes being unclear, or any chance that the situation might change in some way either after your will has been written or after your death, then it is worth asking good solicitors to help you.

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