Wills are a key document for most people, and we often talk about how intestacy rules take effect if there is no Will. But the intestacy rules are heavily influenced by the premise that families will be married parents with children born to those parents. They don’t cope so well with some of the family structures that have become much more prevalent.
Step-children are not recognised under the intestacy rules unless the stepchild has been legally adopted. Only a spouse, a blood relative, or an adopted child can inherit automatically from someone who died without leaving a will. This can cause real unfairness if an estate passes to only some descendants, excluding children of one parent.
If you are living in a stepfamily, you need to make a will that specifically includes your family, not just those that are defined as such in our intestacy legislation.
Same sex couples
Same sex couples are in a slightly different position with the legal status of their children depending on how they are conceived and whether the couple are married or in a civil partnership at the time. Unfortunately, this does not mean that your step-children would inherit under the intestacy rules. They are in the same position as step-children above, and either need to be legally adopted or have specific provision made for them in your Will.
The concept of a Common Law husband or wife is probably one of the widest held misconceptions of English Law. Living together does not give you the rights attached to marriage regardless of how long you have cohabited for. Unmarried couple therefore need to ensure that:
i) Jointly held property is held correctly, and
ii) Wills are in place as there is no automatic right to inherit
If you have been cohabiting with someone for at least two years before their death, you may be able to make a claim against their estate if there was no or inadequate provision made for you in the will, either through the Will or intestacy. Step-children of an unmarried couple can only make a claim where they were financially dependent on the deceased. Claims must be made within 6 months of Grant of Probate.
What if we need to vary a Will because someone has been left out?
If, as a family, you are dealing with an estate where someone has been mistakenly left out of a Will, it is possible to enter into a Deed of Variation signed by everyone concerned that alters the will or the effect of the intestacy. The problem is that this cannot be agreed where it would need to be signed by a child, as they are not legally able to enter into the agreement. So it may not be possible if the effect of the Will has been to leave an estate to a minor.
A Deed of Variation (if it can be done) has to be signed within two years of the date of death in order to be effective for tax purposes, although it may be possible to enter into a variation after this.
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The information provided in all of our blogs reflects only a narrative of some elements to consider on the topic. The blogs do not contain considered legal advice and should not be relied upon as advice. Please see our website terms and conditions for full details of our disclaimer. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.