No Will - No Worries?

14 April 2020

These anxious times have caused many of us to reflect on the need to make or review our Will.  I, myself, double checked recently that my own Will was in the cabinet at home where I expected to find it and that it was up-to-date. Our anxiety to put a Will, or new Will, in place may be heightened by the difficulties in executing a Will in the presence of two witnesses at a time of social distancing and isolation.

I’ve spent my career as a Private Client lawyer properly advising on the need to have a considered and effective Will. But for some of us who are, more than ever, alert to the reality of our own mortality, would dying without a Will really  be a complete disaster for our assets and our family – or would things work out okay?

They might...

There are three issues to grapple with here. The first two apply where there’s no valid Will:

  • The “intestacy rules” as to the division of an estate where there’s no Will;
  • The fact that some assets pass effectively on death independent of any Will or of the intestacy rules

The third applies where we have a Will but it no longer reflects our wishes:

  • The law and impact of revoking a Will

What happens under intestacy?

Under intestacy, if you’re married but have no children, everything passes to your surviving  wife/husband/civil partner.

If you have children, then your wife/husband/civil partner takes your personal belongings, the next £270,000 in value, and half of what’s left. The other half passes to your children (at the age of 18 if they’re under that age when you die). If there’s less than £270,000  in the estate (ignoring the personal belongings), then the surviving wife/husband/civil partner inherits everything.

If you’re not married  but leave children, those children take everything.

If you’re unmarried and have no children, then your estate passes to your parent(s)  if alive, otherwise in accordance with a pecking order depending on what relatives you leave.

The most common misconceptions about the intestacy rules are:

  • Everything passes to your wife/husband /civil partner. - It won’t if your estate is more than £270,000 and you have children.
  • A “common law” spouse ( i.e. a partner to whom you’re not married) is treated the same as if you were married. - They won’t be. They’re not recognised under the intestacy rules – they may need to bring a claim under the Inheritance (Provision for Family and Dependents Act) 1975 for a reasonable share of your estate – which may mean they need to sue their own children.

The intestacy rules only apply to the division of your “estate”- i.e. assets you own in your name that don’t pass on your death by other means.


Which assets pass on death independent of the will or intestacy?

  • A property, perhaps the family home, held by a married couple as “joint tenants” will pass automatically to the survivor on death;
  • A joint bank account passes to the surviving account-holder  automatically;
  • A Self Invested Personal Pension (S.I.P.P) is applied on at the discretion of the managers of the fund - normally in accordance with an expression of wishes form; 
  • The proceeds of a life insurance policy sensibly  written “in trust” for the surviving spouse/family members. Useful for inheritance tax purposes and also allowing access to the funds promptly on death.

It’s possible, thus, that a person with substantial wealth in a jointly owned property and pension but with modest other  personal assets  can be assured that their spouse will see that value on their death, rather than an upset to the smooth transition of family finance through a  share of the estate  passing to the children under the intestacy rules.

Nevertheless, and generally, the persons most “at risk” from an undesirable  application of the intestacy rules are married couples with children under 18. Most couples would wish to see everything pass to the survivor on the first death and for the children to take the estate on the second death.

This is efficient from an inheritance tax perspective. There’s no tax on the first death; tax is deferred until both parties to the marriage have died.

If a sizeable proportion of the estate passes to the children on the first death under the intestacy rules then any balance passing to the children  over the nil rate band of £325,000 (or £500,000 if the additional “Residence nil rate band” is available) will  bear tax at 40%. If the bulk of the value in the estate is represented by the family home, then a widow/widower may need to sell the house to pay the tax.

If the children are over 18, they may agree that the estate should pass in its entirety to their surviving parent and enter into a deed of variation to that effect (which will defer the tax). But, of course, they might equally choose not to do so, and if the children are under 18 then such deed of variation isn’t possible.


Intestacy - a One size fits all solution?

The intestacy rules are, by necessity, a “one size fits all” solution that  may not fit many family circumstances very well. This is particularly so in the absence of a coherent legal regime for established but  unmarried couples. Further, while the intestacy rules (by accident, rather than design) might address the desire of couples on a second marriage to divide their estate between the new spouse and the children of the first marriage, they don’t reflect the desire of most married couples with children to leave everything to the survivor on the first death.

But for some, say a widow or widower with children, the intestacy rules most often achieve exactly the result desired - to leave all to the children equally.  I’ve had a number of conversations recently, where I’ve been able to put a mind at rest by advising that while we’d meet up to fine tune a Will once lockdown is over, the intestacy rules will meanwhile, produce the desired end result.

Where an existing Will is out of date and no longer reflects one’s family circumstance and attendant wishes, then, clearly, a new Will or codicil is needed. If executing a new Will at the present time isn’t practically possible, then, no, a “letter of wishes“ as an interim measure doesn’t work.  It has no legal effect – though the beneficiaries in your out-of-date Will might, possibly,  feel morally (if not legally), bound  to put those wishes into effect (even to their own detriment). But it’s not something that might be taken as a given.

If the intestacy rules produce a result much preferred to the terms of the existing Will, then revocation of the Will means that the rules apply until a new Will is made. (In passing, I may say it’s a common misconception that revocation of an existing Will revives an older Will.)

Revocation can be affected simply by destroying the existing Will (by tearing it up or burning it) with the intention of revoking it. Therefore, leaving written evidence or telling the appropriate persons that you’ve revoked the Will is useful so there’s no doubt over your “intention”.


This article is in no way intended to suggest that, for many, Wills are unnecessary. Anyone who has assets and cares about what happens to those assets on death should properly and sensibly make a Will. Wills do more than direct who gets what - they deal with the appointment of chosen executors, guardians for the children should parents die before they’re 18, an expression of funeral wishes, where the burden of inheritance tax should fall and so on.

But in these challenging times, the first steps in reflection about what might happen on one’s death might be to establish:

  1. Which assets do I have that will/won’t pass under my Will or intestacy? How is our home held, is my pension / nomination form up to date, are my life insurances written in trust?;
  2. How would assets within my “estate” pass under my existing Will or on intestacy?

If in doubt, and in the interests of peace of mind, please do contact Jim SawerJames Ward or the Private Client team.

About the Author

Jim Sawer is a partner in our private client team. He has a broad private client practice and has advised families in the UK and overseas, including those with commercial and landed interests, for over 30 years.  Clients appreciate his ability to identify the true crux of a matter promptly and his results-orientated approach to resolving private client issues in the family context.

Latest blogs & news

How UK Capital Gains Tax is applied to UK property when non-UK resident spouses divorce

As non-UK tax residents, the couple will be subject to special rules for calculating the capital gains tax (“CGT”) due in relation to either the sale or transfer of their UK property.

Don’t make an awful year even worse…Separation and Capital Gains tax

The last 12 months have put an awful lot of pressure on the family unit and sadly this has led to a spike in separation and divorce amongst married couples. With the end of the tax year fast approaching (last day Monday 5th April – Easter Monday) it is timely to consider the tax consequences of separations.

The challenges for intended parents and surrogacy arrangements during the coronavirus crisis

The coronavirus crisis has caused huge disruption across the world. The distress that it is causing is compounded in circumstances where intended parents of surrogacy children are in the middle of their surrogacy journey. In this blog, we address some of the most common issues people are experiencing and provide practical tips on how to navigate the current situation. These challenges include access to fertility treatment, pregnancy and birth, international travel restrictions, immigration status, parental orders and Wills among others.

Will COVID-19 prompt changes to Will legislation?

With an increase in the number of client wanting to write new, or update existing, Wills or Lasting Powers of Attorney while either self-isolating or remaining within the government's social distancing guidelines, Diva Shah discusses the possible changes to the Wills legislation. 

No Will - No Worries?

Anxieties to put a Will, or new Will, in place may be heightened by the difficulties in executing a will in the presence of two witnesses at a time of social distancing and isolation. But for some of us, more than ever alert to the reality of our own mortality, would dying without a will really  be a complete disaster for our assets and our family – or would things work out OK?

What a difference a day count makes: The implications of the Coronavirus pandemic on the UK tax status of non-domiciled individuals

International clients with a UK footprint often like a good spread sheet: specifically, a spread sheet covering their days spent in the UK and those spent overseas in the period 6 April to the following 5 April. This period is the UK tax year, and well-advised international clients – those considered neither resident nor domiciled in the UK - are all too aware that not keeping track of their UK day count may make them UK resident and within scope of UK income and capital gains tax on their worldwide income and gains. Numbers matter.

Coronavirus and the perils of signing your Will

The news is dominated at the moment with the dreaded C word – COVID-19.  Our TV screens, phones and newspapers are filled with the death count, panic buying and now “lockdown”.  For many, being isolated or maintaining social distancing means that you may well be thinking about your future.

Wills and estate planning - the right time is right now

In the current crisis, we find ourselves with time (perhaps too much time…) for worry and reflection over an uncertain future. That reflection could usefully and responsibly be channelled, in part, to issues of Wills, tax planning and general succession.

COVID-19 related insights:

COVID-19 related insights:

Our COVID-19 statement

We recognise that these unique times are presenting unprecedented challenges for our clients and we are here to support you in any way we can.

Click to view

Can you get out of or suspend a contract because of Coronavirus?

Alex Torpey covers the key things to look out for if you are relying on the Force Majeure clause.

Watch the video on LinkedIn

Overcoming the challenges of co-parenting for separated and divorced parents

Rachel Freeman, Partner in our Family Law team, addresses some issues that we are seeing arise for separated parents in the current crisis.

Read the blog

Tech in Two Minutes - Episode 7 - The Coronavirus challenge for tech coworking spaces

Andrew Solomon speaks about the challenge for tech companies and coworking spaces during the current COVID-19 pandemic.

Listen to the podcast

The legal basis for lockdown

Alun Milford, Partner in our Criminal Litigation team, provides an in-depth look at the legal basis behind the current lockdown.

Read the blog

Managing your Migrant workforce in the COVID-19 crisis

On Friday 3 April, immigration partner and head of department, Nick Rollason, hosted a webinar looking at urgent issues employers are facing during the COVID-19 crisis and answered some of the key questions being raised.

Watch the webinar recording

Furlough leave and the Coronavirus Job Retention Scheme: key legal considerations for Employers

On Thursday 9 April, Andreas White, Partner in our Employment Law Team, delivered an overview of the scheme with a focus of the key legal issues for UK employers.

Watch the webinar recording

Coronavirus and the perils of signing your Will

Will instructions have apparently risen by 30% since COVID-19 reached our shores. What effect does COVID-19 have on Will signings? James Ward and Diva Shah in our Private Client team blog.

Read the blog

The juggling act of a single mother, home school teacher and head of a family team

Charlotte Bradley, Head of our Family Law Team, reflects on how the COVID-19 crisis has affected working parents like her.

Read the blog

The future public inquiry into COVID-19

Calls for a public inquiry are continuing to mount and are likely to prove difficult to resist. In this blog, Sophie Kemp considers the framework for such inquiries, and the key issues likely to form the core of its terms of reference.

Read the blog

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility