What Happens to my House if I Die without a Will?

02 March 2018

You own your home in your sole name, and you want to make sure that it goes to the right person after you die. So, what do you need to do? Make a Will that is legally valid.

We asked this question on Twitter a few weeks ago. Worryingly, 35% of respondents answered incorrectly. So, if you don’t have a legally valid Will in place, what does happen to your home when you die?

How is Your House Owned?

The first thing to consider is how you own your home. Do you own it in your sole name, or jointly with another person?

If you own your home in your sole name and you die without a Will in place, then the law will decide who will inherit it from you, under strict inheritance laws called the Rules of Intestacy. These rules are explained in more detail below. 

If you own your home jointly, there are two ways in which the property can be owned. This is either as Joint Tenants or as Tenants in Common.

If you and another person own the property together as Joint Tenants, then this means that you jointly own the property as a whole, with neither you nor the other owner having an identifiable share. When a house is owned jointly as Joint Tenants, if one of the owners dies then the ownership of the property will automatically transfer to the surviving owner. 

If you own the property with another person as Tenants in Common, you and the co-owner will each own a specific share of the property. In this situation, if you were to die with no Will in place, then the co-owner of the house would not automatically inherit your share of the home. Instead, your share would be passed down in line with the Rules of Intestacy.

What are the Rules of Intestacy?

The Rules of Intestacy determine who is entitled to inherit from you if you die without a valid Will in place. They place your relatives in an order of priority, as follows:

  1. Spouse or civil partner
  2. Children
  3. Grandchildren/great grandchildren
  4. Parents
  5. Siblings
  6. Grandparents
  7. Aunts and uncles
  8. Half aunts and half uncles

The intention of the Rules of Intestacy is to ensure that the next of kin of the deceased receive the inheritance that they are entitled to. Of course, it’s not always as straight forward as that and some modern day family arrangements aren’t accounted for. For example, unmarried partners and step-children are not recognised under the rules.

Example Case Scenario

Here’s an example to illustrate how not making a Will can result in your home not being passed down in the way that you would have wanted.

Rob is in his late fifties. He is divorced with 2 grown up daughters from his marriage. Rob has been with his new partner, Katie for 15 years, but they are not married. They own their own home as Tenants in Common. Rob contributed more to the deposit when they bought the house, so he owns 70% and Katie owns 30%.

Rob has never got around to making a Will. He would want his daughters to inherit his money, and Katie to inherit his share of the home. As they own the house together Rob assumes that Katie will inherit his share automatically, with everything else being passed down to his daughters.

Rob dies unexpectedly. As he and Katie own the house as Tenants in Common, not as Joint Tenants, Rob’s 70% share of the house is passed down to his daughters under the Rules of Intestacy. Even though Rob and Katie have been together for 15 years and Katie owns 30% of the house, she is not recognised in law as being entitled to inherit Rob’s share of the house. Katie believes that Rob would have wanted her to stay in the home that they shared together, but as he didn’t make a Will, there’s no way to prove what he would have wanted.

Benefits of Making a Will

If Rob had made a Will, he could have stated exactly how he wanted his possessions and assets to be distributed, instead of leaving it all to chance. He could have ensured that everyone he cared about would be provided for in the right way and he could have avoided unnecessary stress and disagreements erupting between his loved ones.

With a Property Trust Will, Rob could even have “ring fenced” his share of the property, ultimately leaving it to his daughters but stating that Katie should be allowed to live in the house either until she marries, cohabits or for the rest of her life. Katie would then have been able to stay in the home, and upon her death, marriage or cohabitation, Rob’s share of the property would have passed to his daughters. For details about Fixed Fee Property Trust Wills and other Trusts, see Trust Wills.

With Co-op Legal Services, making a Will is more straight forward than you might think. You can start making your Will online at a time that suits you. You can then speak with one of our Will writers who will discuss your wishes, offer guidance and tailor your Will to suit your individual needs.

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