Whether it's down to inertia, feeling too young or too poor, or just not wanting to think about death, a staggering six out of 10 UK adults do not have a valid will in place. But, although the rules of intestacy, which govern how your estate is divided if you die without a will were recently modernised, you still risk your plans going awry if you don't have the necessary paperwork in place.
The rules of intestacy were changed on 1 October 2014 in England and Wales. "It's pleasing that the changes to the rules have simplified matters," says James Antoniou, head of wills at Co-operative Legal Services. "But, if you die without a valid will in place, your final wishes about what happens to your estate may not be met."
New rules
Under the old rules, if you were married with children, the surviving spouse would receive the deceased's chattels, the first £250,000 of their estate, plus a life interest in half of the balance. This life interest gives them a right to use the property or receive an income from it while they're alive but, on death, it would pass to the deceased's children. The other half of the balance would go to the children, at 18 if they are below this age.
The changes are more significant for married couples and civil partners without children. Previously, where there was no will, the surviving spouse would have received the deceased's chattels, the first £450,000 of the estate plus 50 per cent of anything else. The remaining 50 per cent of the balance would go to the deceased's blood relatives with parents first in line, followed by siblings and so on.
Under the new rules, blood relatives are no longer in the picture. Instead the entire estate goes to the surviving spouse. While this more fairly reflects many relationships, Carla Brown, partner and head of wills, tax and trusts at Moore Blatch, says it could still cause problems. "If a couple haven't been married long or the deceased's family doesn't see eye to eye with the surviving spouse, there could be consternation that they don't receive a penny," she explains.
Chattel changes
Changes have also been made to the definition of chattels. While this rather archaic word used to refer to personal property including 'carriages', 'linen' and 'scientific instruments', it now relates to anything that is not monetary, business assets or, perhaps most importantly, 'held as an investment'.
David Lewis, tax manager at Baker Tilly, says this could affect people with wills as well as those without. "If someone has art, wine collections or classic cars that are solely for investment purposes then it can no longer be passed on as a chattel," he explains. "I suspect there will be legal arguments around this new definition. For example, what happens if you occasionally enjoy a bottle from your wine investment? But, whether or not you've got a will, if you're likely to be affected, bear the new definition in mind. "
It's also important to note that, although it was mooted that the rule changes might acknowledge cohabiting couples, they still remain outside the law when someone dies without a will. No matter how long, or how harmoniously, they may have lived together, without a marriage or civil partnership certificate, they won't be recognised legally when their partner's estate is divvied up if they died intestate.
Benefits of a will
While the changes to the rules of intestacy may suit the requirements of some people who don't have a will, Ms Brown warns against being lulled into a false sense of security. "The rules have changed but all the reasons why it's worth having a will in place still stand," she says. "As well as ensuring your wishes are carried out, a will can enable you to be more tax-efficient, make provision for your business and appoint guardians for your children. You can even use it to set out your funeral wishes."
But while a will can provide all these benefits, it's essential that it's valid or it could be ignored altogether when your estate is divided up. Unfortunately, a survey by charity Will Aid found that 70 per cent of wills could potentially be invalid. This was either because the will was homemade; based on a DIY kit from a shop; or, most commonly, out of date.
There are certainly plenty of pitfalls that can invalidate a will. Mr Antoniou highlights some of the common ones: "If a will hasn't been signed or witnessed properly, it's unlikely to be valid," he explains. "Handwritten amendments can potentially affect the validity of some of the provisions and, if there's any ambiguity, it may render all or parts of it ineffective."
Where this is the case, it could mean the rules of intestacy come into play, either for all or part of the deceased's estate. It can also slow down probate, push up legal costs and, in some cases, lead to long-lasting family feuds.
Legal advice
Having a legal professional oversee the writing of your will can ensure these pitfalls are avoided. Although you'll pay a fee - typically between £150 and £400 or more if your affairs are complex - a solicitor will take into account your circumstances and ensure the will is valid and reflects your wishes.
There's a further incentive to get it written this November as it's Will Aid month. During this, participating solicitors will write your will in exchange for a voluntary donation to Will Aid. This supports nine charities including Age UK, NSPCC and the British Red Cross and the suggested voluntary donation is £95 for a basic will or £150 for a pair of basic mirror wills.
Whether or not you take advantage of Will Aid month, it's also important to regularly review your will, especially as changes including marriage, divorce or the death of a beneficiary can also render it ineffective. "Review your will whenever there's a change in your circumstances, your wealth or your attitude to your beneficiaries," says Lewis. "Even without these triggers, read through it every few years to make sure it's still in line with your wishes. It's a lot easier to change it now than leave your loved ones to unravel when you're no longer around."
• For more information about Will Aid or to find a participating solicitor in your area, visit the website at willaid.org.uk/will-makers
