Research from the Money and Pensions Service shows that 53% of adults aged 50-64, and 22% of those aged 65 and over, do not have a Will. Given how much more settled most people’s affairs are by this stage of life, that gap is striking, and it points to a wider reluctance to confront the subject rather than any lack of assets worth protecting.
Dying without a Will places a real burden on the people left behind. It removes the ability to give clear instructions on how your assets are to be distributed, to name your own Executors, and to give guidance on matters such as funeral arrangements. Without a named Executor, family members or other interested parties are left to agree among themselves who should take on the role of administrator, at a time of grief and stress.
Intestacy rules
Where someone dies without a valid Will, their estate is instead distributed under the laws of intestacy, a standard set of rules that apply across England and Wales, which are widely misunderstood. For those who are married or in a civil partnership, the surviving spouse or civil partner receives the whole estate unless there are surviving children. Where a spouse and children survive, the spouse or civil partner instead receives the first £322,000 of the estate along with an absolute interest in half of anything above that figure, while the remaining half is divided equally between the children.
For those who are not married or in a civil partnership, the position is considerably more complicated. Where the deceased had children, the estate passes to them in equal shares. Where there are no children, assets pass first to any surviving parents, then to siblings if the parents are no longer alive, then to grandparents, and finally to more distant blood relatives such as aunts and uncles. If no such relatives can be traced, the estate is treated as bona vacantia and passes to the Crown, a situation that is rare but not unheard of.
Dying intestate and modern living
The current laws of intestacy sit awkwardly with modern life. Couples who have been together for decades without marrying, or entering a civil partnership, often wrongly assume that the length of the relationship alone affords them protection. There is no such thing as a “common-law partner” under current UK law, so an unmarried partner of someone who dies intestate has no automatic entitlement whatsoever, regardless of how long they lived together or how their finances were shared. The Government has launched a consultation to consider whether unmarried partners should be given greater protection, but for now, cohabiting couples remain significantly more exposed than those who are married.
The impact on financial planning
The absence of a Will can undo even the most carefully constructed financial plan in an instant. The death of a partner who has not made a Will can leave the surviving partner in real financial difficulty at an already distressing time, potentially forcing an unmarried partner to move out of the family home, or seeing savings and investments pass to an estranged spouse or to the deceased’s blood relatives rather than the people they would actually have wanted to provide for.
A Will also allows you to address guardianship of children and to decide how any inheritance they receive should be managed. While the legal age of majority is 18, many parents consider this too young to inherit outright, and it is worth considering whether that age should be pushed back to 21 or 25, by which point a beneficiary may be in a better position to use the money sensibly, whether for further education or a house deposit.
Business owners at particular risk
Business owners face a further layer of risk by not making a Will. If a sole trader, partner, or director dies without a Will, the business could pass to someone with neither the interest nor the capability to run it, putting the business itself in jeopardy and creating fertile ground for disputes between remaining partners or family members.
Pension expression of wish
For many, pension savings represent a substantial part of the overall estate, yet they sit outside the scope of a Will entirely. Pension trustees retain discretion over how death benefits are distributed, which makes it essential to make your wishes known to them directly. An Expression of Wish is not legally binding, but it gives trustees a clear steer on your intentions and should be reviewed periodically so that a current version is always on file.
With upcoming changes to the way pensions are treated for Inheritance Tax purposes on death, it is worth revisiting any existing Expression of Wish to check it remains both accurate and tax-efficient, particularly since pensions passing to a surviving spouse or civil partner will remain exempt from Inheritance Tax under the new rules.
Do not put off making a Will
Most people understand why a Will matters, yet many still put it off, whether from a lack of urgency or simple discomfort with thinking about their own mortality. We do not draft Wills ourselves, but we regularly remind clients of the importance of having a valid, up to date Will, and a recent pension Expression of Wish, as part of a broader financial planning review. We recommend instructing a suitably qualified solicitor to prepare a Will, since errors in a Will are usually only discovered after death, by which point they can lead to disputes and considerable legal expense to put right. Please speak to a member of our team if you would like to discuss any of this in more detail.
