In this article, we discuss what happens when you pass away without having a will in place, and what your children are subsequently entitled to…
Nothing divides people faster than wrangling over inheritance and, even the closest of families can become disconnected when it comes to cold hard cash. Creating a will which lays out who gets what when we pass away is the easiest way to ensure that property, cash and assets make their way to the right people.
Despite this, research shows that around 31 million Brits are at risk of dying without having a will in place; known as dying intestate. While leaving a will is a sensible way of making sure that your wishes are carried out, in some cases, it is possible for those who feel that they have a claim to assets after a person’s death, whether or not they are actually included in that person’s will.
In this article, we’ll be examining the process of contesting probate – particularly in the case of the children of the deceased. Take a look…
What Happens When There’s No Will?
Many people assume that, if a person has children, then those children will automatically inherit when that person dies. However, this is not always the case.
If the deceased person did not leave a will, and was married or in a civil partnership, the surviving partner will inherit the deceased estate up to the value of £270,000. If the estate is worth over £270,000, the deceased child or children will inherit the amount above that (for example, if the estate is worth £370,000 and, the deceased had two children, then both of those children will inherit £50,000).
However, If the deceased person was not married, or was widowed, the estate will automatically be inherited by his or her children. If the deceased was living with a partner but was not married or in a civil partnership, then, again, the children will inherit the estate.
What About Stepchildren?
In the case of a person dying without leaving a will, the term ‘children’ when used in the context of a right to inheritance refers to direct descendants of the deceased, adopted children and children from previous relationships. This does not, however, apply to stepchildren. For example, if the deceased was married and his or her wife or husband had a child from a previous relationship, that child would not have a right to inheritance unless expressly stated in the deceased’s last will and testament.
What Happens in the Case of Estrangement?
Sadly, there are instances whereby parents and children become estranged, often being out of contact for many years prior to the death of the parent. In the case where the parent has not left a will, the estranged child will still inherit, subject to the terms mentioned in the last section.
If, however, the deceased parent did leave a will (and the estranged child was not included) things may become a little complicated. In Scotland, there is a law which prevents parents from disinheriting their children.
In the event of a parent’s death with or without a will, surviving children have a right to claim a third of the ‘moveable estate’. This term refers to all of the deceased’s assets apart from property or land, for example, jewelry, savings and investments.
In England and Wales, the rules are a little different – citizens have ‘testamentary freedom’ which, in a nutshell, means that they may include and exclude anybody they wish when making a will, including children. English and Welsh citizens can exclude one or more of their children if they so desire.
There have been a number of famous people who have done just that, including Hollywood actor, Tony Curtis who, shortly before his death in 2010, chose to cut all six of his children out of his will.
If a parent has died without leaving a will, or has cut a child out of their will, all is not necessarily lost. When a person dies without a will, that person’s assets will be subject to probate. This is a legal process which handles estate administration to determine who gets what. The deceased person’s child may ‘contest probate’.
This is, essentially, the legal process of making a claim on the deceased’s estate. A person night contest probate under the following circumstances:
- They are a beneficiary under the current or a previous will
- They are a family member
- They were owed money by the deceased parent
- They were financially dependent on the deceased parent
- They were promised something, either verbally or in writing which was not subsequently given
In order to contest probate, the child should hire the services of a good probate solicitor who will be able to advise them as well as handling the legal aspects of the case on their behalf. In many cases, the probate solicitor will be able to secure some or all of the assets that the child is claiming, regardless of estrangement or the deceased parent’s marital status.
A Right to Inheritance
The fact that so many people in the UK do not leave a will is surprising and can quickly cause complications and difficulties to arise within a family. As well as children possibly having to enter into a protracted and acrimonious legal case when a parent doesn’t leave a will, dying intestate also puts the deceased person’s partner in a difficult position if they were not married. For example, even if the deceased person had lived with a romantic partner for many years, that partner will not automatically inherit assets from the deceased’s estate.
Making a will is usually extremely straightforward and inexpensive and can help to prevent any misunderstandings and unpleasantness after your death. Even if you feel that you don’t have enough property or cash to warrant making a will, doing so will make things significantly easier for your grieving loved ones once you’re gone.
Please be advised that this article is for general informational purposes only, and should not be used as a substitute for advice from a trained legal professional. Be sure to consult a lawyer/solicitor if you’re seeking advice on the law. We are not liable for risks or issues associated with using or acting upon the information on this site.
Photo by Aaron Burden from Unsplash