Rules of intestacy set to change
Proposals have been made to alter the English rules of intestacy, which could place children and relatives of the deceased at a disadvantage.
If the first parent or civil partner should die without having made a will, their estate will subsequently be distributed, according to the rules of intestacy. Currently, this means that, depending on surviving relatives – children, cousins or parents could be set to inherit a large portion of the estate. Under the new rules however, the surviving spouse or civil partner will benefit from the majority of the estate.
Where there are no children in existence, the other partner will become the sole beneficiary. Siblings and other relatives will no longer automatically be considered as key beneficiaries.
With the consultation due to end later this week, then should this new legislation come into force, those who have separated yet not divorced should consider making a will, to avoid giving the bulk of their estate to their estranged spouse, in the event of their death.
Civil partnerships and wills
Civil partnerships and wills can be a bit of a minefield, when it comes to estate planning and protecting your assets.
In the past, before formal civil partnerships were recognised, gay couples tended to have written wills which indicated that their partner was to be a beneficiary of their estate, in the event of their death. This is simply because a gay relationship was – and still is – not considered to be the same as a straight couple marriage, in the process of intestacy.
Remember though, that marriage revokes all existing wills, rather than reinforcing them. This means that if you don’t prepare another will after having entered into a formal civil partnership, any previous wills will be classed as void and the process of intestacy will come into play. Unfortunately, this still means that your partner will normally have to share the proceeds of your estate with your family, unless the estate has little value.
Disinheritance for "Black Widow"
A so-called “anomaly” in the 1965 Succession Act which led to an accused murderess claiming at least part of her late husband’s assets, has led to further confusion in the case of “The Black Widow”.
In a high profile murder case, Catherine Nevin was charged with murdering her husband Tom, in 1996. Tom did not leave a will but his remaining assets included a pub which was jointly owned with his wife, two properties, a life assurance policy and a significant amount of cash.
The deceased’s brother and sister were subsequently named as administrators of the estate and they went on to bring about a civil case, to prevent Mrs Nevin from benefitting from her late husband’s estate, despite her claims that she should benefit through the laws of intestacy.
Since that time, Mrs Nevin has campaigned to prevent evidence from the criminal trial being used in this civil case. However, the judge has ruled that to do so would be “contrary to common sense and offend any reasonable person's sense of justice and fairness."
If successful then, the deceased’s siblings will be able to Mrs Nevin from being able to inherit any of her late husband’s assets.
- You may know that the deceased was married but don’t assume that there were no other marriages prior to this.
- Common mistakes happen through making presumptions about the deceased e.g. ignoring the possibility off illegitimate children.
- Not only do you need to prove relationships but you need evidence to show the termination of family lines.
- Adopted children have the same rights as biological children but make sure you confirm the adoption and obtain documented evidence.
- Verify all the information you receive. If a friend or family member says that someone has died, or they had no children – check the facts for yourself.
- Ensure that beneficiaries are in fact blood relatives, having the same surname does not prove anything, always obtain supporting evidence.
- If the deceased was resident overseas, seek legal advice in that country.
- When you have identified heirs, the distribution of the estate can be complex. It is a common mistake to share assets equally when beneficiaries should have received different entitlements. At this stage, you may want to speak with a professional.
- Obtain a missing beneficiary insurance policy to safeguard yourself – you may need to get research verified in order to do this as you will have to demonstrate you have taken every step to minimise the risk of a claim.