If you’re married and you die without a will, your husband or wife will still inherit from you, but that’s not the case if you just live with your partner.
If you’re married or in a civil partnership you may feel that you don’t need a will and it’s true that your husband or wife or civil partner would inherit if you died without one. But they wouldn’t inherit everything you own – especially if you have children. It could mean that the family home has to be sold or – worse – that your husband or wife has to sue your children to remain there. If you’re living together (but aren’t married) you should definitely draw up a will as you have little or no rights if your partner were to die. Here’s what you need to know.
What you need to think about
Before you draw up a will you should think about what would happen to your partner or spouse if you were no longer around.
Would they be able to continue living in the home?
The rules around who gets what if you die without a will are complicated (they’re called ‘intestacy laws’). They certainly don’t guarantee that your husband, wife, or civil partner would inherit everything and, if you don’t have children, your money and property could be split between your spouse/civil partner and your parents or other relatives. If you’re not married you have no automatic right to inherit at all.
Would they have sufficient income and capital (lump sum) to maintain their current standard of living?
Would they need someone to help them sort out all the paperwork and administration after bereavement?
This is what an executor does. You can ask friends or family members to act as your executor (you don’t need to use a solicitor). If your affairs are very complicated it may be a good idea to involve a solicitor but your executors can ask for their help as and when they need it. If you use a solicitor as an executor, ask them how much they charge. Some charge a ‘value element’ – basically a percentage fee based on the value of everything you leave behind.
Would they need someone to help them with child care?
Could you have left them more money by doing some tax planning?
You don’t pay inheritance tax while you’re alive but it has to be paid out of the money and property that you’ve left for your relatives. At the moment, the first £325,000 of your estate is free of inheritance tax and because married couples and those in a civil partnership can transfer the allowance to each other, it effectively means they can leave £650,000 between them free of inheritance tax.
There’s also a main residence allowance, which applies in addition to the existing nil rate band, but only where the person who has died is transferring a property that was once their home, to their direct descendants (i.e. children or grandchildren). The residence nil-rate band is currently £175,000, having increased to this limit in April 2020. You can transfer the residence allowance to your surviving spouse when you die if you haven’t already used it, so a couple’s total residence allowance comes to £350,000.
This means that in the current 2023/24 tax year, a married couple could potentially leave their children a combined estate of up to £1m, without facing an inheritance tax bill. You can find out more about how inheritance tax works in our guide Understanding Inheritance Tax.
What to watch out for
There are a number of ways that you may be caught out, either by not having a will or by having one and not reviewing it if your circumstances change.
If you’re not married: it’s really important that you draw up a will if you own your property as ‘tenants in common’ (called owning without a survivorship clause if you live in Scotland). This is a way of owning property where you can own unequal shares. It also means that your share doesn’t automatically pass to your partner if you die without a will. If you die without a will and own your property as tenants in common, your share in it would pass to your children (once they reach 18), parents and then other relatives.
If you’ve been living together and get married: if you sorted out your will and have since got married, you need to get another one as marriage invalidates your will (except in Scotland). The only exception to this is if you and your partner draw up a will and spell out that the will is being written with full knowledge of and in advance of your marriage.
You may be worth more than you think. Many people forget about benefits they’re entitled to from work, such as death in service benefits. For example, you may have your own life insurance policy and a lump sum from your employer. It could take you over the inheritance tax threshold and it may mean you want to think of ways of passing these on without incurring this tax.
How to write a will
You can choose to either use a local solicitor or a will writing service depending on the complexity of your affairs.
If you want to use a solicitor, you can find one on the Law Society’s database – it can be helpful to search for one who specialises in wills and probate. The cost will depend on how complex your estate is and exactly what you want to do, but expect to pay from a few hundred pounds to over £1,000, depending on your estate and the solicitor you use. If you are putting assets into trust for example, the cost will be greater. You should discuss exactly what you want and how much it will cost upfront to avoid any doubt.
Alternatively, if you have a relatively straightforward set of circumstances, you could consider using one of a number of specialist will writing services available in the market.
Give yourself peace of mind that you’ll have control over what happens to your money and property when you die. A legally-binding will can ensure your wishes are followed and avoid complications for your loved ones at a very difficult time. If you’re looking for somewhere to start, we have partnered with Farewill. They have an excellent rating on Trustpilot and are offering Rest Less members a 20% discount off the cost of writing their will.
Find out more about why wills matter in our article The importance of writing a will or if you’re ready to get started you could read our detailed guide on how to write a will.
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