If you don’t make a will, the inheritance of your estate is governed by a set of rules known as the rules of intestate succession, writes Mike Rapps, Estate Planning & Tax partner.
The rules try to second-guess what the average person in the particular family situation would do. In fact, they rarely achieve this, which is why lawyers always encourage people to make a will, so that their individual wishes prevail.
But do the rules even accord with the views of most people? A survey by the National Centre for Social Research has come back with some interesting results on three of the more difficult areas.
Cohabitants
At the moment, the only right a cohabitant has is to have his or her case to be awarded part of the estate considered by the Court, but only after at least two years of cohabitation.
In law there is no such thing as a common-law spouse and no-one wants to go to Court. However, the responses to the survey indicated the diversity of opinion on this subject.
There was strong support for some entitlement where young children were involved or where the cohabitation had lasted for at least ten years. However, in other circumstances, opinions varied widely, with favourable views fluctuating in accordance with various factors involving length of relationship, existence and age of children, method of ownership of property etc.
Generally speaking, the feeling was that cohabitants should not be treated on an equal footing with spouses. Apart from this, the survey probably only serves to illustrate the complexity of the issue.
Second marriages
At the moment, surviving spouses have varying rights on intestacy, depending on the size of the estate and the existence of children. No distinction is drawn between first and subsequent spouses. In the survey, very few people favoured the entire estate going to a second or subsequent spouse, whilst a slight majority favoured everything going to a first spouse.
Subsequent generations
Under intestacy, children inherit equally but if the entitlement moves to another generation, e.g. grandchildren, each unit derived from a deceased child gets an equal share. So if someone dies intestate and his two children have predeceased, one leaving a single child and the other leaving three, the one child would get half of the estate and the three would get one-sixth each. There was strong support for everyone in the same generation receiving an equal share of the inheritance.
What does all this tell us? The message is clear: intestate inheritance is complex and controversial, and the rules will never satisfy everyone – but if you make a will, your wishes will be honoured.
For more information, please contact the Estate Planning & Tax department.
