Wills and inheritance

Making a Will ensures that your money and possessions will be distributed according to your wishes

Unmarried couples cannot inherit from each other unless there is a Will

If you do not make a Will, or your partner does not make a Will, and one of you dies, this is called “dying intestate” – dying without a Will. This could mean that your money and possessions would be distributed in a way that you would not have wished.

By making a Will, you can ensure that your “estate” (your money, property and possessions) is passed on in a way that you would want. You can nominate the person you would like to deal with your estate. This person would be responsible for passing on your estate as stated in your Will.

Your Will should be kept under review – it is important to keep it up-to-date, especially if your circumstances change. After getting married or registering a civil partnership, you still need to make a Will as any wills made beforehand become void.

Not married or not civil partnered

Couples who are not married or not civil partnered cannot inherit from each other unless there is a Will. And unless your partner has specifically named you in a Will, you will not automatically be nominated as his or her personal representative (the person who sorts out what is left behind). Without a Will, the only option for a surviving partner who feels they have not received reasonable financial provision is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Married or civil partnered

Different rules apply depending on whether the deceased person died before or after February 1 2009. Information relating to deaths before February 1 2009 can be found on the justice.gov.uk website.

Without a will – deaths after February 1 2009

Distribution where the spouse or civil partner and children survive:

Estate of not more than £250,000: everything goes to the surviving spouse or civil partner.

Where the estate is over £250,000: the first £250,000 plus personal possessions go to the spouse or civil partner.

Half of the rest is shared equally amongst the children, and the income or interest on the remainder goes to the spouse or civil partner until they die – on their death the capital is shared equally between the children.

Distribution where the spouse/civil partner (but no children), and either the parents or siblings of the deceased survive:

Note: Any surviving siblings must be “whole blood”, which means those siblings that share both parents of the deceased.

Estate of not more than £450,000: everything goes to the surviving spouse or civil partner.

Where the estate is over £450,000: the first £450,000, plus half of the rest, and all personal possessions go to the spouse or civil partner.

The other half is shared equally between parents, or shared between siblings if there are no surviving parents.

If you have children

Married, civil partnered, or not, if you have children your Will should express what you would want to happen to them if you, or both you and your partner, should die.

Inheritance tax

Not married or not civil partnered

On the death of a cohabitee, the heirs, including the surviving partner, would have to pay inheritance tax of 40% on all assets left above the personal threshold of £325,000 (since April 2009). This could cause real hardship in some cases if, for instance, the deceased partner’s share of the family home is worth more than £325,000. In some circumstances, survivors are forced to sell off their shared home in order to pay the inheritance tax. In areas where property prices have risen, the survivor may not be able to afford to buy another home nearby.

Married or civil partnered

On the death of their partner, the surviving spouse or civil partner will suffer no inheritance tax on the assets he or she inherits even if they amount to more than £325,000.

However, inheritance tax does apply to legacies left to any children.

If any of the tax free rate of £325,000 is unused after making bequests to other family members, the unused amount can be transferred to the estate of the surviving spouse or civil partner, which can then be used on the survivor’s death – this only applies where the survivor dies on or after October 9 2007.

Inheritance tax will be payable on the surviving spouse or civil partner’s death if the value of their estate exceeds the survivor’s available nil rate band and the unused nil rate band of the first partner to die. For example, if neither partner has used any of their nil rate bands (during their lifetimes or on the first partner’s death), then on the survivor’s death inheritance tax will only be payable if the estate exceeds £650,000.

Further information

More information and advice on making a Will can be found on the Citizens Advice Bureau website.

The legal information on this page was checked by Langleys Solicitors.