Senior Associate Solicitor Danielle Jarvie shares some insight into the benefit of having a will in relation to Probate.

Danielle Jarvie

Senior Associate Solicitor

From my experience when there is a Will the probate registry are coming back much quicker, in one case the Grant came back after a week. When there is not a Will in place its taking a considerably long time. You can only chase the probate registry after 16 weeks for them to expedite the application.

Furthermore, for clients with large estates they often don’t realise that without a will, their spouse may not inherit all the estate under the intestacy rules. The intestacy rules significantly impact inheritance tax (IHT) when a spouse and children are involved.

Intestacy Rules

Under the intestacy rules in England and Wales, the entitlement of a surviving spouse or civil partner depends on whether the deceased left issue (children or remoter descendants). If the deceased left no issue, the surviving spouse or civil partner is entitled to the entire estate absolutely. However, if the deceased left issue, the surviving spouse or civil partner is entitled to the deceased’s personal chattels, a statutory legacy (fixed net sum), and one-half of the residue of the estate absolutely. The remaining half of the residue is held on statutory trusts for the deceased’s issue.

As of 26 July 2023, the statutory legacy (fixed net sum) is £322,000, and it is free of inheritance tax and costs. The surviving spouse or civil partner is also entitled to simple interest on this sum from the date of death until it is paid or appropriated. The personal chattels include tangible movable property, excluding items used for business purposes or held solely as investments

To inherit under the intestacy rules, the surviving spouse or civil partner must have been married to or in a civil partnership with the deceased at the time of death. If the marriage or civil partnership was ended by divorce or dissolution made final before the death, the survivor has no claim under the intestacy rules. Additionally, the surviving spouse or civil partner must outlive the deceased by 28 days to inherit .

Matrimonial Home & Children

In cases where the estate includes a matrimonial home, the surviving spouse or civil partner has a statutory right to require the personal representatives to appropriate the home towards their share of the estate. This right must be exercised within 12 months of the grant of representation, and the home cannot be sold without their written consent during this period unless necessary for administration purposes .

The portion of the estate passing to the children is not exempt from IHT and may be subject to IHT if the estate exceeds the nil-rate band (currently £325,000) and any applicable residence nil-rate band. The statutory trusts for minor children also require careful administration, as the inheritance is held in trust until the children reach 18 years of age, which may have further tax implications.

It is important to note that the intestacy rules may not align with the deceased’s intentions, and the fixed statutory framework could lead to unintended tax consequences. Advising clients to create a valid will can help mitigate these issues and allow for more tailored estate planning