I’m married, so why do I need to make a will?
You might think that when you die if you are married or in a civil partnership, your surviving spouse or civil partner will automatically receive all of your estate. However, this is not the case.
If you die without leaving a will, there are legal rules, called the ‘intestacy rules’, which dictate which members of your family will receive your estate. For more information, read Intestacy rules and Intestacy rules in Scotland.
So here is the golden rule: it’s best to take control of your estate by making a will.
What happens if I have a partner but am not married or in a civil partnership?
England and Wales
If you do not have a Will on your death, your partner will not be entitled to anything under the intestacy rules.
Even if you have joint bank accounts with your partner, or you jointly own your home, any jointly held property will not necessarily pass to your surviving partner. Whether it does or not depends on how you own these assets.
If you don’t have a will that makes your intentions clear, your partner may not be entitled to any jointly owned property or money in a joint bank account, even if this is what you intended.
Failing to make a will can also have unintended tax consequences. So it makes good sense to always make a Will.
However, a surviving cohabitant can ask the courts to a share of the deceased’s estate under the Family Law (Scotland) Act 2006. The court, in deciding whether to give a share of the estate to a former cohabitant, will take into account the couple’s relationship. In deciding to grant a former cohabitant a portion of the estate the courts will, for example, consider:
how long the couple cohabited
the nature of their relationship (whether it was similar to a marriage or civil partnership)
the type of arrangement the couple made regarding money (eg whether they had a joint bank account and whether they supported each other financially).
As in England and Wales, failing to make a will can also have unintended tax consequences. So it makes good sense to always make a Will.
You will need to review your will from time to time
You will need to review your will and amend it to reflect changes in your life, such as:
- changes in your financial circumstances
- the birth of a child, which brings new responsibilities changes in your partner’s circumstances
Trying to apply an old will to new circumstances can have harmful results, so it makes sense to look again at your estate and review your decisions from time to time.
If you know something major is going to happen in your life (eg you are getting married or entering into a civil partnership or getting divorced or separated), it is advisable to review your will in contemplation of the new circumstances.
Someone who wishes to make a will must have the requisite mental capacity and understanding to make a valid will. When someone lacks mental capacity, a statutory will can be made on their behalf through an application to the Court of Protection.