23 January 2012

With effect from today, the level of entitlement where a spouse or civil partner dies without a Will (referred to as dying intestate) has been increased. The new limits are now as follows:

• House - £473,000 (old limit £300,000)
• Furniture and furnishings £29,000 (old limit £24,000)
• Cash right where deceased left children £50,000 (old limit £42,000)
• Cash right where deceased left no children £89,000 (old limit £75,000)

A spouse or civil partner will be entitled to assets and/or cash up to these new levels before the deceased’s children are entitled to anything.

The changes have attracted media attention with claims that children from first marriages are now very likely to be disinherited. However, this is very much an overreaction to the changes and any person concerned about how these changes will affect their own circumstances can take advice to substantially mitigate them.

How can I make sure my children inherit from me?

Very simply, by making a Will. Prior rights are only relevant if you die without a Will and therefore the simplest way to ensure your children inherit on your death is to make a Will.

If I do leave a Will, can my spouse or civil partner and/or my children claim anything?

Yes, if you leave a spouse or civil partner and children, your spouse or civil partner is entitled to claim a third of your moveable estate (generally everything except land a buildings) and your children can claim a third of your moveable estate between them. If you leave a spouse or civil partner but no children or vice versa, the entitlement is increased to a half of your moveable estate.

I don’t want my children to inherit anything and my assets are below the prior rights limits. Would I be better to die without a Will?

No, it is never a good idea to die without a Will as it creates complexities in the administration. It is possible to draft a Will carefully so that if your estate falls within the prior rights limits above your spouse or civil partner could disclaim his or her interest under the Will and take everything under the intestacy rules, leaving your children with no entitlement.

I would like to provide for my second spouse or civil partner but I want to make sure that my children get something eventually. Is this possible?

Yes, by creating a ‘liferent’ trust in your Will. This gives your spouse or civil partner the right to the use of the assets or the income from it but on the death of your spouse or civil partner your children will inherit the assets.

I don’t have any children. Surely my spouse or civil partner would inherit my whole estate?

No, in this case, after satisfaction of the prior rights entitlement, listed above, your spouse or civil partner is only entitled to a further one-half share of your moveable estate. The rest of your estate would pass to your brothers and sisters and/or your parents.

By making a Will it is possible to effectively plan for both your spouse’s or civil partner’s and your children’s future. Dying without a Will creates complexities in the administration of an estate, generally with increased cost, and means your assets may not pass in accordance with your wishes. We recommend that everyone has a Will, no matter how small his or her estate may be.