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Will Writing: A Taboo Subject

November 2, 2022

Sadly, over 60% of people in the UK die without having a Will.

This means they have died “intestate.”

You may think that the process for inheritance is cut and dry, and that your estate will simply be passed to your next of kin. Though this is mostly true, the specifics of how your estate is distributed, who gets what and in what order, are decided by what is known as the Rules of Intestacy. Falling back on this rule could lead to your loved ones having to endure a lengthy court process, rather than have the time and space they need to grieve their loss. Therefore, it is important that you understand what will happen to your family and your estate should you die without a Will.


The Rule of Intestacy

The easiest way to understand the Rules of Intestacy is via the below chart from The Society of Will Writers. It lays out the order in which your estate is distributed and how much each person is entitled to. 

A few important take aways from this chart are:

  • If you are married or in civil partnership without children, then all your assets will pass to your spouse or civil partner.
  • This is also true for married couples and civil partners that do have children if the estate is worth £270,000 or less. Above that amount your spouse will be entitled to the first 270,000 plus 50% of the remaining estate.The rest will split between the children, real and legally adopted – but not stepchildren. If a son or daughter has died before the deceased their share will be distributed to their children in substitution.
  • Common law spouses are not factored into the rules of intestacy because common law marriages have no legal standing. If you are neither married or in a civil partnership the rules of intestacy will completely bypass your long-term partner as intestacy rules do not recognise these relationships and your partner would receive nothing from your estate.
  • You have no control over who gets what. If there are certain items or amounts of money that you wish to leave to a specific person, organisation or charity this will not automatically happen should the rules of intestacy be enacted, even if you have made your wishes known to your family members. The only way to remove the guess work from the process is to have a properly written Will. 

The Effects of Marriage and Divorce on a Will

In England and Wales once you marry any previous Wills that you have written become invalid unless you have inserted a specific clause called “in contemplation of marriage”. This means that if you do not update your will after you get married, the Rules of Intestacy will apply upon death. 

Furthermore, your Will does not automatically become invalid once you divorce. However, any inheritance that would be paid to your ex-spouse or civil partner would go to other beneficiaries named in the Will, as the Will is read as if your ex-spouse/civil partner had predeceased you. 


It is recommended to review your will after both marriage and divorce.


Keep in mind that there are strict guidelines when it comes to amending a Will. Once you have a valid, signed, dated and bound Will if you would like to make amendments to this you must draw up a document known as a codicil. A codicil must be signed, dated and witnessed just as your Will was, and is a separate legal document. A codicil is only designed for minor changes. If making any major changes to your Will, for example adding or taking out beneficiaries, it would be more appropriate to have a new Will written.   



Guardianship Clause

If you have children under the age of 18 then the most important clause to include in your Will is the guardianship clause. This enables you to nominate who would be responsible for looking after your children in the unfortunate event of your deaths. If you do not have a Will in place, your children become the responsibility of the Courts and they would make that decision for you. 

The loss of a parent is hard enough on a child. Your Will is an important part of taking care of your children and providing the best life for them, even if you are no longer physically here. 


Other Things to Know

From time to time, it comes up that a person wants to cut a family member/s out of their Will, and though this is possible it is a very grey area and is not as easy as you may think! Under the inheritance (Provision for Families and Dependants) Act your Will may be contested by a family member who is expecting inheritance on the basis that they have been deprived of a perceived entitlement. 

If you are thinking of cutting a family member/s out of your Will you must take advice from a professional Will writer. 

It is a common myth that your debts die with you, but this is not true. All debts you owe on your death will need to be paid from your estate. This could be anything from a credit card or utility bill to pension overpayments or your mortgage. These debts need to be settled before your estate can be distributed. If there isn’t enough money in your estate to settle all debts the creditors are entitled to take what they can and the remainder of the debt will then be written off. 

However, if your executors settle your estate and distribute to beneficiaries having told creditors that there are no funds to settle, they will be held accountable and responsible for the liability of the debt.


Another very common myth is that will writing is an expensive and arduous task. Though we cannot guarantee what the process is like at other firms, here at Bigmore Wills and Probate we pride ourselves on making the process as streamlined and simple as possible. It can be as easy as having a simple chat over a cup of tea. And with our fixed fee pricing structure, there are no hidden costs.  


Why Will Writing Should NOT be a Taboo Subject

They say there are two things in life you can’t escape: Death and Taxes. While the majority of us will have a clear idea of the logistics of tax payments, there is a resistance from many on accepting and understanding the logistics around death. Not just around end of life arrangements but around the distribution of any assets you leave behind. 

Putting a Will in place can give you peace of mind that your loved ones are cared for, and that your estate is distributed the way you would wish it to be. It takes the guess work out of the process for your family and allows them the space they need to grieve their loss and celebrate the live you lived. 


by Cheryl Finch