Sophie Harvey, Partner at Spire Solicitors LLP, discusses the importance of having a Will.
WHAT WILL HAPPEN TO MY PROPERTY IF I DIE?
A person’s property is frequently their main asset and yet often if someone dies it does not pass to who they want it to.
Jointly Owned Property
If you buy a property jointly with someone else it is important to ensure that the property is owned in such a way so if either of you die the property is divided as you intended. There are two ways of jointly owning property. Firstly as beneficial joint tenants and secondly as tenants in common.
If you own as joint tenants you are each entitled to half of the equity in the property and on the death of either one of you the property passes automatically to the surviving joint tenant.
If you own as tenants in common you can choose to own the property either in equal or unequal shares. In any event on the death of either one of you the deceased person’s share of the property forms part of their estate and passes in accordance with the terms of their Will or if they do not have a Will in accordance with the intestacy provisions.
The Importance of Having a Will
If you die without making a valid Will you are said to have died ‘intestate’. If you die intestate any property in your sole name or your share of any property owned as tenants in common will be dealt with in accordance with the intestacy provisions.
New provisions in the Inheritance and Trustees’ Powers Act 2014, which came into force on 1st October 2014, change the way a person’s estate is divided if they die without a valid Will. However, despite these recent changes the intestacy rules still do not make any provision for a cohabitee even if there are no other surviving relatives and even if you have been living together for a long period of time.
Therefore, if you own a property as tenants in common your share of the house will not pass to your cohabitee under the intestacy provisions. Instead your whole estate passes equally to your children if you have any or if not it will pass to other family members in a specified statutory order. Often this is not what the deceased person intended to happen.
Even if you have a spouse or a civil partner they may not inherit everything. Under the intestacy provisions if you are married with children your spouse is entitled to all personal effects, a legacy of £250,000 (plus interest) and half of the remaining estate (with your children being entitled to the other half). Again many people will no doubt be surprised by these rules.
To avoid uncertainty you should make a Will specifying exactly what should happen to your estate on your death. When drafting your Will your solicitor will also address other important issues such as who you wish to appoint as your Executors to administer your estate and who you wish to appoint as Guardians to care for your children in the event they are left without parents.
This is not legal advice; it is intended to provide information of general interest about current legal issues.
