The risk of the wrong beneficiary in your estate

Everybody should have a Will.  And it really should be written by a solicitor.  One of the key reasons being we can talk you through all of the various implications of your decisions and what you can and cannot do within the law. If you do not have a Will, the law is very clear on how your estate should be distributed and to whom – whether you like the decisions or not. In this article we’ll have a look at the risk of unintended beneficiaries when you do have a Will and when you do not.

If you have a Will

If you do have a Will, your children and your spouse have legal rights regardless of what you have written.  In your Will, you will specify what you want to happen with (1) any property and land (2) any specific legacies, whether money or assets and (3) everything else.  Legal rights relate to everything other than property or land, or what is known as your ‘moveable estate’.

Your spouse is entitled to claim one-half of your moveable estate if you don’t have children, or one-third of your moveable estate if you do have children.  Your children are collectively entitled to claim one-third of your moveable estate (or one half if there is no spouse).

It may be that your children or spouse are content to accept what is written in your Will – but if not, they can make a legal rights claim.  If they do make a legal rights claim, they will forfeit whatever you have specified in your will – they can’t have it both ways.

If you do not have a Will

Not having a Will can be incredibly messy and cause complications for your loved ones at a time when they are emotionally vulnerable.

Your spouse would be entitled to Prior rights which would entitle them to a share of any heritable property they live in together with a cash payment from any moveable estate. Thereafter your spouse would also be able to claim a one half share of your remaining estate if you don’t have children or one third of your estate if you do have children.  However, if you are not married or in a civil partnership, your partner is not entitled to anything from your estate.  Any co-habiting partner would instead be required to make an application to Court to seek a payment from your estate. Any such payment is at the discretion of the Court but is limited to the maximum a surviving spouse could claim.

All of your biological and/or adopted children are entitled to at least a third of your estate, but your step children or foster children are not entitled to anything.

All of your biological children are entitled to a share of your estate whether you have a relationship with them or not.

If you don’t have biological or adopted children, but do have a partner who you are in a relationship with but are not married/in a civil partnership, then your parents will inherit your estate.  If they have pre-deceased you, then your siblings inherit next.  If they are dead, then their children follow.

You could find yourself in a situation where the step children you love are passed over for a distant nephew you’ve never met.

If you have an out of date Will

If you have separated but not divorced from a marriage and are now living with a new partner, your Will might have everything left to your Ex.  Or you might have left something to somebody you’ve lost contact with or have had a fall out. Although there are certain legal protections when an ex spouse is included within your Will, we would always recommend changing your Will to reflect your change in circumstances

Conclusion

Write a Will.  Update it regularly.  Get help from a solicitor.  If you follow all three of these steps, you can avoid the risk of unintended beneficiaries in your estate.  Make an appointment today for a no-obligation conversation with a Wallace Quinn solicitor.