Anyone who is marying for the second time and has children by a first marriage or indeed has children who are not the children of their new spouse must consider making awill if their children are not to be at risk of being inadvertently disinherited.

Because there are so many possible permutations or relationships, the laws of intestacy can only deal with the most simple case where someone either remains unmarried or marries once only and has children only of that relationship.

The basic rule is that when someone dies without making a will (“intestate”) then the first £250,000.00 goes to their spouse and the remainder goes one half to their children outright on  their attaining 18 years of age and the other half is held in trust to be invested and to pay the income to the spouse during that persons lifetime: on the spouses death it passes to the children.

Imagine a case however where the wife has been married previously and has a couple of children by her first marriage. She is worth £200,000.00. She dies before her second husband without making a will.

Her husband inherits the whole of her estate because it is below £250,000.00 and on his death the whole of his estate including anything which he has inherited from his wife passes to his relatives: if he has no children either by a previous or second marriage then his estate may at law pass to his brothers and sisters to the total exclusion of his wife’s children who may well have lived with him and formed part of the family unit for perhaps 15 years.

This could e grossly unfair in all circumstances: the matter is remidied very simply by making a Will.

If you wish to discuss this further, please contact Mr Tim Napier our Wills specialist on 01925634681

When someone dies without leaving a will the law prescribes who is entitled to take a Grant of Letters of Administration to that person’s estate and who benefits from that estate. The law goes back with only minor modifications well over 100 years back to the days when cohabition was extremely rare, but nowadays something of around 50% of all relationships are established on a cohabitional basis.

It is important to realise that in the absence of a Will the cohabitee has no automatic rights to any part of an intestate’s estate: if there are children it will go to the children and if there are no children then to the deceased’s relatives – his parents, or failing them, his brothers and sisters.

Even if the estate goes to the children, this may be of little practical use to the survivor and they could well be driven back on to the unreliable and costly route of making an application to the Court under the Inharitance (Provision for Family and Dependents) Act in which case they will have to demonstrate to the Court financial dependency upon the deceased – which might be difficult if both parties had been working.

No one knows when they are likely to die – most deaths occur by reason of ill-health but some are accidental and totally unexpected – but to it is important whenever there is a long term cohabitional relationship and you treat each other as though married, you should make a Will.

Please contact Mr Tim Napier if you would like to discuss these matters in more detail. 01925634681

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