John And Mary – Case Study 1 – the unmarried couple
John and Mary moved in together 30 years ago and have lived happily together ever since. They have never married and have one adult daughter called Sally.
They haven’t made Wills as they believe that they are “common law spouses” and would therefore be entitled to each other’s estates, which is what they would want.
Their home is in John’s sole name and there have been some family difficulties with Sally so they have become estranged from her and haven’t spoken to her in over 5 years.
On John’s death, Mary is devastated to find that, under the intestacy rules, she is not entitled to anything as she is not on the list of people who is entitled by law to inherit John’s assets.
John’s sole estate, including John and Mary’s home goes to Sally who, because of the bitter family estrangement, insists that Mary leave her home. Mary is therefore made homeless and is forced to leave with nothing.
David and Anthony – Case Study 2 – intestacy and disinheritance
David and Anthony were brothers and were very close to each other. They never married, were both childless and had a loving and close relationship with their mother Rose. Their father had left the family in 1973 and had not been in contact with either Rose, David or Anthony again since.
When Rose died, her Will left everything to the brothers in equal shares.
Both David and Anthony had not got around to making their own Wills. When David then died, under the intestacy rules, his whole estate went to his father even though he hadn’t seen him in over 40 years. This obviously included David’s share of his mother’s estate. Anthony, who was his intended beneficiary, received nothing.
Please don’t let this kind of thing happen to you. This scenario, and the pain that comes with it, can be avoided by putting in careful estate planning measures such as the ones recommended by our expert Estate Planning Advisers, so contact LPA Guardian to see how we can help you.
THE LEGAL BIT – MAKING AN ESTATE PLAN AND WHY IT IS SO IMPORTANT
Whether you are a single person, married, in a civil or same sex partnership or co-habiting with someone, you need to make a Will. However it’s still, incredibly, the case that over 60% of UK adults don’t have a valid Will in place.
Some of the excuses for not making a Will that we have heard over the years include:
- Apathy – “I keep meaning to – I just haven’t got around to it yet”
- Ignorance is bliss – “I’ve never really thought about it, why would I need one?”
- Underplaying the value of a Will – “I don’t have any assets to leave behind”
- Not caring about leaving a mess for your loved ones – “I have no intention of ever making a Will – what’s it to me – I’ll be gone anyway”
- Superstition – “I just have this feeling that if I make a Will, I’m going to die – I know it’s irrational”
You might recognise yourself in one or more of the above statements but, put simply, without a proper Will and estate planning in place, you have no control over what happens to your money, your property and your possessions when you die.
Amazingly, a recent study shows that only 17% of people in the 35-44 year old age bracket have a valid Will in place. This is the age group that is most likely to experience change in their lives such as marriage or civil partnership, buying a property, promotion at work and so on, so they are most at risk.
If you don’t have a Will, you die intestate which means that the Government will decide who gets your assets using intestacy laws that were passed almost 100 years ago. These laws don’t recognise anyone outside of “conventional” family relationships and are inflexible when applied.
The governing laws don’t care what relationships you had with your loved ones, and they won’t accommodate any specific wishes you might have had – so intestacy can often cause unintended consequences, hardship and heartache as illustrated below.
- Married couples / civil partners – the intestacy laws decide on who gets what and sets financial limits on how much your spouse or partner will receive. So, if you want “everything” to pass to your partner, there is no guarantee this will happen.
- Unmarried couples who live together – despite the general perception, there is no such concept as a “common law spouse” and the law currently does not make any provision for cohabiting unmarried partners to inherit anything from each other. So, your unmarried partner won’t receive anything and could even be made homeless.
- Children – if you have young children and don’t have a Will, the government is likely to be involved in deciding who will care for and raise your children until they reach legal age if both parents are deceased.
- Separated couples – if you are separated but not yet divorced, your spouse may still be entitled to inherit a share of your assets, even when that’s the last thing that you would wish.
- Mitigating tax – there is no provision in the intestacy laws for any tax planning or mitigation so you may end up paying more Inheritance Tax than you would with careful estate planning.
- Your personal items – you won’t get a say in who will receive these items – whether they are of sentimental or financial value.
- Delays and complications – if you don’t have a valid Will, your estate can often take longer to wind up and administer and, as you haven’t set out your wishes, arguments amongst your loved ones can be common.
- Default destination – ultimately, if your loved ones don’t fit within the legal framework, your estate may go to the Crown.
The only way to guarantee that your wishes are carried out, and to avoid the pitfalls above, is to ensure that you have put a proper Will in place. A standard Will sets out your final wishes and allows your loved ones to avoid stress and unnecessary expenses, and allows you to control how your estate is handled and:
- Choose your Executors so you know the right person or people will be handling your affairs.
- Choose your children’s Guardians if anything were to happen to you.
- Choose who your Assets will go to, including specific gifts for partners, family, friends or charities.
- Set out your Funeral Wishes so that family arguments or tensions can be avoided.
In addition, getting bespoke, personal advice on your circumstances from an expert such as our estate planning advisers at LPA Guardian will allow you to provide solutions for these considerations and for more complex situations as below.
- Property trusts – ensure that your chosen beneficiaries are guaranteed to inherit your home without it going outside of those wishes.
- Children’s trusts – ensure that your children benefit at an age and time that is right for them.
- Right to occupy trusts – ensure your partner or loved ones can remain in your home after you have passed away.
- Inheritance tax trusts – put in measures to mitigate tax because no-one wants to pay more tax than they need to.
One important thing to remember is that, whether you are getting married for the first time, or the seventh time, any existing Will you have in place will be automatically revoked unless you have specifically stated that your Will was made in contemplation of marriage. If you haven’t, you will need to make a new Will reflecting your current wishes.
At LPA Guardian, we can help you plan for any eventuality and put the correct kind of estate planning in place.