Home / Making a Will / Importance of Making a Will / Why parents and step-parents need a Will

If you have children you will probably want them to inherit your estate when you die or when your spouse or partner dies and will probably want to ensure that they are properly looked after in the event that you die before they reach the age of 18.

You may also want your step-children to inherit your estate when you die.

To ensure that your wishes are carried out when you die you should make a will.

What would happen if I don’t make a will?

Jointly owned property

If you jointly own property with another person they may inherit your share in the property if you die. However, this will depend upon how the property is held.

Property can be jointly owned in one of 2 ways. The joint owners can own the property as “joint tenants” or as “tenants in common”.

If you are a joint tenant when you die your share will pass automatically pass to the surviving joint tenant(s).

If you own property as a tenant in common if you don’t make a will your share in the property will pass in accordance with the “rules of intestacy”.

If you own property jointly with a spouse or a partner you may well be happy for them to inherit your share. However, have you thought what would happen if your spouse or partner were to re-marry or enter into a civil partnership with someone else? If that were to happen and if your spouse or civil partner were to die then your estate could well end up passing to the new spouse or partner and then to their family. As a result your own children could receive nothing.

It is possible to “sever” (bring to an end) a joint tenancy and in effect turn the joint tenancy into a tenancy in common and if this is something that concerns you, you should take appropriate advice.

Intestacy

If you die without making a will you will be said to have died “intestate”. The property and assets of a person who dies intestate are distributed to certain of their surviving relatives in accordance with the rules of intestacy.

If you are married or in a civil partnership when you die your surviving spouse or civil partner will inherit your personal possessions plus the first £250,000 of your estate.

Your spouse or civil partner will also have a right to receive an income from half of the balance of your estate if it is worth over £250,000.

The remaining half of the balance will pass to your children when they reach the age of 18 or to your grandchildren if your own children die before you.

When your spouse or civil partner dies the first half of the balance will also pass to your children.

If you are not married or in a civil partnership when you die (or if you were married or in a civil partnership and your spouse or civil partner dies within 28 days of you) then your children will inherit the whole of your estate.

If you want to ensure that your children inherit your estate rather than your spouse or civil partner, who may re-marry or enter into a new civil partnership, you should make a will.

It is possible when making a will to grant your spouse or civil partner a “life interest” in your property and/or assets. Granting a life interest is a useful way of ensuring that someone is provided for during their life time and at the same time ensuring that when that person dies or remarries a person’s property and/or other assets pass to those he or she would wish them to pass to.

The rules of intestacy make no provision for step-children even where there are no surviving relatives. If you want to provide for your step-children you should make a will.

The Courts do have the power (under the Inheritance (Provision for Family and Dependants) Act 1975 to override the rules of intestacy where the distribution of a person’s estate in accordance with the rules would not adequately provide for certain classes of people, which include children.

Claims made under the Inheritance (Provision for Family and Dependants) Act 1975

If you die without making a will your children and/or step-children may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that “reasonable financial provision” has not been made for them.

Applications under the Act can be made by children of a deceased person and “any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage”.

The Courts take many matters into account when considering an application made under the Act and your children and/or step children could well end up with being awarded a considerably lesser sum than that you would wish for them to receive.

Court proceedings can be very stressful and costly and may damage family relations.

For these reasons it is, therefore, far better to make provision for your children and/or step-children by making a will if you wish to make provision for them when you die.

Care of your children

By making a will you also have the opportunity to appoint guardians to look after your children in the event that you die before they reach the age of 18. Guardians are responsible for the day to day care of children and are responsible for deciding how children are brought up, looked after and educated. They may also be responsible for taking care of the finances of a child until they reach the age of 18.

If you have children and you fail to appoint a guardian to look after them in the event that you die before they reach the age of 18 and if no one else has parental control of your children the Court will appoint guardians for you. It could take several months for the Court to appoint a guardian and in the intervening period your children could be taken into care. A Court appointed guardian will not necessarily be the person you would have preferred to look after your children.