Downton Abbey asks, What happens if you have not made a Will?

Although a meticulous lawyer, the Downton Abbey character, Matthew Crawley, died without leaving a formal will. As a result, Lady Mary was in danger of being left with almost nothing from her husband’s estate. Fortunately, a letter is found from Matthew, appointing his wife as his sole heir and signed by Matthew and two witnesses.

This may be the case for fictional 20th century England, but what are the risks today of not drawing up a will?

If you die without a Will, then the law – not you or your family - will decide who gets your assets. The provisions which govern what happens are called the ‘Intestacy Rules’. These Rules deal differently with your assets depending on whether you are married or not, and whether your children or other family members survive you.

Let’s say you die without a will, leaving a spouse and children. Your spouse will receive the first £250,000 worth of assets and your personal possessions, or everything if your estate is worth less than this sum. This would not include your share in any property held as joint tenants, which passes automatically to the surviving owner. If you have step-children, they will not receive anything. If you have adopted any children, they are treated the same as your natural children.

Anything in excess of £250,000 would then be split, with one half being divided between your children on attaining 18, and the other half being placed in trust for the lifetime of your spouse. The trust provides them with the income from the capital, but preserves the capital for the children when the surviving spouse dies. .

This is the most common scenario, but the Intestacy Rules provide for many other different schemes of distribution of assets, depending on which relatives survive you.

If you have a spouse, no children but other relatives (including parents, brothers, sisters, grandparents, uncles and aunts) then your spouse will receive everything up to £450,000. Again, this would not include your half share of any property held as joint tenants because this passes automatically to the surviving owner.

Anything in excess of £450,000 would then be split, with one half of the excess passing to your spouse, and the other half to your parents or failing them, to your brothers and sisters. If any brothers or sisters have died before you, but have children, then they will take their parent’s share. If you have no spouse but you do have children, then your estate will be shared equally between the children, or if they have died before you, then their children would take their share. Your unmarried partner has no right to any part of your estate under the Intestacy Rules.

If there is no surviving spouse and no children, then the estate will pass to relatives in the following order of priority: parents, brothers/sisters; half brothers/sisters’ grandparents; uncles/aunts; half uncles/aunts. If any such relatives have died before you leaving children of their own, those children would take their parent’s share. If none of these relatives can be traced, then the entire estate will pass to the Crown.

The law has changed since Downton’s days, but it still does not do what many people expect. For example, it gives no rights to unmarried partners, no rights to step-children and no rights to carers. It also sets up trusts for children under 18 which may be highly inconvenient for the surviving spouse. The only way you can be sure that the people you care about will receive what you want to leave them is to make a properly drawn, validly executed will.

Matthew knew this too; although the scriptwriter deprived him of his chance of making a proper will, luckily for Lady Mary he had the good sense to put a ‘holding’ will in place.

If you have been putting off making a will, take a cue from Matthew’s story, and give us a call today. We can tell you how to put your own affairs in order and watch the rest of this series of Downton Abbey with a clear conscience!

Note: in this article, references to a ‘spouse’ should be taken as references to a spouse or civil partner.

For more information contact Jill MacMahon.