Intestacy and The Importance of Making a Will
Intestacy and The Importance of Making a Will06 March 2019 Written by James & George Collie

Will

 

If a person dies without leaving a Will or a testamentary writing they are said to have died intestate, The

 

 

 

 

 

 

 

Prior Rights rules of intestacy can be divided into three different parts. These are Prior Rights, Legal Rights and Free Estate, otherwise known as Dead’s Part. andtheir estate will be dealt with under the rules and law governing intestacy. The deceased’s assets and personal possessions will be shared out in accordance with the law instead of the deceased’s wishes and in fact could pass to someone they hadn’t intended to benefit on their death.

 

 

 

 

Prior rights are designed to ensure that the surviving spouse’s needs are provided for. The surviving spouse or civil partner is entitled to the ownership or tenancy of any house owned or rented by the deceased at the time of death providing that they were ordinarily resident in the house. The surviving spouse or civil partner is entitled to the deceased’s interest in the house up to a maximum value of £473,000 together with an entitlement to the deceased’s share of the furniture and plenishings in the house, up to the value of £29,000.

 

Financial provisions are also made for the surviving spouse whereby a sum of up to £89,000 is left to the spouse/civil partner where the deceased left no children. If the deceased had children this figure is reduced to £50,000.

 

Legal Rights

 

Legal rights ensure that it is not possible to disinherit a spouse, civil partner or children. Legal rightscan be enforced against the deceased’s moveable estate once all debts, funeral expenses, administrative costs in winding up the estate and prior rights have been satisfied. It should be noted that legal rights cannot be defeated and can also apply to a deceased’s estate where the deceased left a Will.

 

Free Estate otherwise known as Dead’s Part

 

The balance once prior rights and legal rights have been satisfied, is known as the free estate or dead’s part. It may contain heritable and moveable property. The executor will look at each successive class of beneficiary and once a possible claimant entitled to the free estate is found the executor goes no further. The order of distribution is generally as follows:-

 

(1)    Children

 

(2)    Parents AND brothers or sisters (if someone survives from both classes each class takes half the estate)

 

(3)    Brothers or Sisters (if no parents survive)(including nephews and nieces and their descendants)

 

(4)    Parents (if no brothers or sisters survive)

 

(5)    Spouse

 

(6)    Uncles and Aunts (both maternal and paternal) (including cousins and descendants of cousins)

 

(7)    Grandparents

 

(8)    Grandparents’ brothers or sisters (and so on)

 

(9)    The Crown.

 

It is important to consider whether you would prefer to leave a Will to ensure that your wishes are adhered to once you are gone. There are many reasons why it is important to make a Will and these are mentioned below.

 

Why make a Will?

 

One fundamental benefit of making a Will is that you get to exercise your freedom of choice. It allows the testator (the person making the Will) to make choices about who to appoint as executors or trustees who are entrusted to deal with the administration of thetestator’s estate in accordance with their wishes as set out in the Will.

 

A testator can benefit from naming as many beneficiaries as they like in their Will. The testator may wish to leave a legacy of money or an item of jewellery, which if the bequest had not been specifically mentioned in the Will, it might not otherwise be given effect to under the laws of intestacy.

 

It is advisable that those with young children should make a Will in order to provide financial provision and protection for them. If no Will was in place children could be left in the care of any member of the family. A trust clause in your Will can provide for the appointmentof Guardians to look after your children should you die. This trust clause will also deal with the financial aspects, including money to be paid over to the Guardians to be used for every day financial support for the children.

 

It should be noted that once a child has attained the age of 16, they can demand, as of right, the benefit left to them under a deceased relative’s Will. This can be avoided by inserting into the trust a clause specifying which age you would like your beneficiaries to attain before they can inherit under your estate. Typically this can be the age of 18 or 21.

 

Another fundamental benefit of making a Will is to make provision for financial and tax planning purposes. It is advisable for those with a high valued estate, apart from considering inheritance tax planning pre-death, to make a Will to provide for the potential tax liabilities their loved ones may face on their death.

 

A Will can also include specific funeral directions that the testator wishes to be carried out upon their death. This can include whether the testator wishes to be buried or cremated, any other instructions relating to their funeral, and directions as to what they wish to be done with their remains.  It is becoming increasing popular for individuals to pre-pay their funeral to alleviate the burden on their loved ones. Details of pre-paid funerals can be included in their Will.

 

By making a Will the testator eliminates the uncertainty surrounding what is to be done once they die and in turn gives the testator peace of mind knowing their estate will be dealt with in accordance with their wishes.A Will can also relieve the stress for your loved ones at a time of grieving.

 

Should you wish to discuss making a Will, or perhaps making amendments to your existing Will, please contact Vivienne Bruce  (This email address is being protected from spambots. You need JavaScript enabled to view it.)  or Sarah McAllan (This email address is being protected from spambots. You need JavaScript enabled to view it.) by email or on 01224 581581, to make an appointment.

 

 

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