24th March 2020
24th March 2020
Many of us would assume that a Will is only for the ‘older generation’ and perhaps not something to be thought about in our 20’s and 30’s. However, if you own a property or have young children a Will can be very important to protect your loved ones should you pass away.
If a person passes away without a Will their assets are dealt with under the intestacy rules meaning that the people you would wish to benefit may not. For example, if you live with a partner and you are not married, your partner may not be entitled to your estate if you should pass away.
If you own a property as ‘joint tenants’ the ownership of the property will pass to the joint owner, but if your property is owned as ‘tenants in common’ then each share will pass under each individual intestacy rules.
Here is a scenario that best explains what would happen:
Ben and Alice have lived together for five years and they have been in a relationship for seven years in total. They are not married and do not have any children. They own a property, and their property is owned as Tenants in Common. They each have separate bank accounts and cars.
Sadly, Ben passes away unexpectedly.
Ben does not have any children and therefore under his intestacy rules his assets all pass to his Mother. The money in his bank, the cars and his share in the property passes to his Mother.
This is clearly unhelpful for Alice as it could mean that Ben’s Mother wishes to sell the property, and perhaps she cannot afford the mortgage without access to the money in Ben’s bank accounts.
Circumstances can also arise whereby two partners pass away in the same incident. This scenario has been considered by the Courts as far back at 1793. The Courts have ruled that there should be no presumption as to who passes away first if clear evidence can be shown that one partner lived longer than the other.
However, this can sometimes be difficult to prove and therefore the Courts have created The Commorientes Rule. The Rule presumes that the deaths occurred in order of seniority, so that the eldest is deemed to have died first and the youngest last.
Here is another scenario that best explains what could happen:
Callum and Donna live together and they own their property as joint tenants. They are married but do not have wills. They have no children. Callum is 29 and Donna is 27.
They are both involved in a car accident in which sadly they both pass away.
Following the Commorientes Rule, Callum is deemed to have passed away first and because they are married this means all of his assets pass to Donna first. As Donna is considered to have passed away second, this then follows her intestacy rules.
Donna's assets pass to her siblings under the intestacy rules and Callum’s family unfortunately receive nothing.
Creating Mirror Wills can mean that all the above scenarios are catered for. The Wills can make clear that upon the first death, all assets pass to each other and upon the second death it is divided between each partners respective families.
Very careful thought should also be given to who you would like to be appointed as guardians for your children should you pass away whilst they are minors.
Replacement guardians should also be considered to make provision for as many circumstances as possible.
Provision can also be made so that the Guardians have access to the funds in your estate, but only for the maintenance and education of the children.
Please feel free to contact a member of the Wills, Trust and Probate team and arrange your free no-obligation half hour appointment to discuss your circumstances and how we may be able to assist you.