What happens if my husband or wife dies without a will?

05 June 2019

Suffering a bereavement of any loved one is always going to be difficult to cope with, but it will be especially if it involves the death of a spouse.

Many people find it hard to consider life without their husband or wife and choose not to think about whether they’ve made a will as it can, understandably, cause upset and distress. Other people, however, take a different approach and want to ensure that they understand, whilst everyone is still alive, the legal consequences if their spouse dies without making a will.

In this article I explain some of the legal implications if your husband or wife dies without having a legally valid will in place.

Who can deal with your spouse’s things?

The legal authority to deal with a deceased person’s estate rests with the deceased’s ‘personal representative’. The personal representative is selected in a number of different ways depending upon the deceased’s circumstances.

Firstly, if the deceased had a will in place then the will should appoint a person or people to be their executor(s). In this case, the named executors would be the personal representatives of the deceased and have the legal authority to deal with their affairs after their death.

If, however, there is no will in place then it becomes more complicated as, at the time of the death, there is no one legally appointed to deal with the deceased’s estate. In order for someone to be legally recognised as the personal representative he/she must apply to the probate registry for a court order called a grant of representation. The probate registry only issues the grant of representation to someone if they can demonstrate that they are entitled to receive it.

Where there is no will, the order of priority of people who are entitled to be appointed as the personal representative follows the same order of priority as the intestacy rules, so the beneficiaries of the estate are entitled to be the personal representative. Therefore, if you are the sole beneficiary of your husband’s estate under the intestacy rules (see below) then you’ll also be the personal representative entitled to administer his estate.

What’s in the estate?

Generally speaking, a person’s estate comprises all their solely owned assets (such as bank accounts, property, investments and personal belongings) and all their liabilities like loans, mortgage and credit cards.

If assets are jointly owned with someone else, such as a joint bank account, then it does not form part of the estate for succession purposes because, upon the death of one of the account holders, the account simply remains in the surviving account holder’s name. This is referred to as an asset ‘passing by survivorship’. Please note however that this isn’t always the case with jointly owned assets, particularly in respect of property which is jointly owned as ‘tenants in common’.

In order to be able to administer the estate properly you’re going to need to know what financial interests the deceased had including whether they had made any gifts (financial or otherwise) in the past.

The assets in the estate are normally used by the executor to pay off the deceased’s liabilities and administration expenses. Whatever’s left is distributed to the beneficiaries – this is called the ‘residuary estate’.

You may find it surprising to know that many couples have little knowledge of the other’s financial arrangements. It therefore makes a lot of sense to have your husband write this down somewhere safe so that you can refer to it if needed in the future. This could save an awful lot of time and potentially a lot of money.

Where does the estate go?

Where there is no valid will in place then the deceased’s estate is distributed in accordance with how the law dictates, called the rules of intestacy.

Rules of intestacy

In respect of distributing the residuary estate, the intestacy rules have evolved over time (the last change took place as recently as 2014) and they set out an order of entitlement, establishing who should inherit from the deceased’s estate, and in what proportions.

The distribution of an estate under the intestacy rules is determined by:

  • what relatives survive the deceased, and
  • the value of the deceased’s estate

If you are the surviving spouse then what you are entitled to receive from your husband’s estate will also depend upon those two factors.

Since 1st October 2014, where a husband dies leaving a surviving spouse but no surviving children or grandchildren, then the spouse is entitled to receive the whole of their husband’s residuary estate.

If, however, the husband leaves a spouse and children or grandchildren surviving him, then his residuary estate is potentially divided differently if the value is worth more than £250,000.

If it is, then the surviving spouse is entitled to receive all of their husband’s personal possessions together with a legacy of £250,000 from his estate. The remaining amount of his estate is then divided equally between the surviving spouse and his children.

So if the total amount of money to be distributed from the husband’s estate is £500,000 and he was survived by his spouse and two children, then under the intestacy rules, the money will be divided as follows:

  • The surviving spouse would initially receive £250,000 (fixed legacy) plus the personal possessions
  • The remaining £250,000 of his estate would be divided, half to the spouse (£125,000) and a half between the children in equal shares (£62,500 each)

Whilst this division may seem fair in the eyes of the law, it may not be what everyone wants and as these laws can change over time, you can never guarantee how an estate might be divided in the future.

Make a will to ensure your wishes are clear

The only way to make sure that your wishes are clear is to put a legally effective will in place. This not only deals with the division of the estate but also who you want to be in charge of dealing with matters after your death.

Protecting your spouse and children is something that we naturally do during our lifetimes, so putting a will in place is an extension of this protection after you’re gone.

By Head of Wills, Solicitor James Antoniou

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