Anna Sutcliffe, solicitor at Wright Hassall, outlines the risks of not having a will when you buy a home. 

For many people, their home is their most valuable asset. So it follows that they would want to ensure that their home, as well as their other belongings, passes to the beneficiaries of their choice when they pass away.

What happens if there is a property within an estate, but no will?

Property owned in sole name of the deceased:

• If a person buys a property in their sole name, it will form part of their estate when they pass away. 
• In the absence of a will, the person is unable to control who inherits their estate, as this will be governed by the rules of intestacy. These rules can produce surprising results for the unwary.  
• For example, an unmarried partner is not entitled to receive anything (no matter how long the relationship lasted, or whether the couple had children together). This situation can lead to the surviving partner having to issue proceedings against their children, who in this scenario, would take the estate in equal shares.  

Property in joint names:

If a property is bought in joint names, careful consideration would need to be given as to the nature of the joint ownership. A conveyancing solicitor should explain this, but generally, the position is as follows:

• Joint tenants: where property is owned as joint tenants and one owner passes away, their share in the property automatically passes to the surviving owner. This is known as the right of survivorship, and means that the property would pass to the co-owner, and not form part of the deceased’s estate.
• Tenants in common: when a property is owned on this basis, all owners have equal rights to possess the whole of the property. However, each owner owns a severable share.  

For example, X may own 40%, and Y 60%. When Y dies, his 60% share would form part of his estate and be distributed either in accordance with his will or (if there is no will) in accordance with the intestacy provisions. This means that unless X can afford to purchase Y’s share, it is likely that the property would need to be sold. Y’s estate would then receive 60% of the sale proceeds.

Even if the property is owned as joint tenants and passes by survivorship (ie outside the estate), it is still advisable to make a will.

Why is it sensible to make a will?

• Generally, if someone has the funds available to buy a property, they will have other assets as well. A will can stipulate who receives those assets.  
• When making a will, you can choose a trusted person to administer your estate. 
• It allows you to decide who should benefit from your estate. You can include people who would fall outside of the intestacy provisions, or exclude people who would benefit under them. This will be particularly relevant to those with complex or non-traditional family relationships. 
• You can appoint a guardian to look after your children (if under 18). In the absence of a guardian, your children could find themselves in the care of social services until the court determines who should have custody.
• If you own a property, you may wish to allow someone to continue living in it after you die and to determine what should happen to the property when that right of occupation terminates. You can make arrangements of this nature in your will.
• It is generally more cost-effective to administer an estate when there is a will.  
• When making a will, a professional advisor will be able to assist you in exploring if there are steps that can be taken to reduce Inheritance Tax.
• You can have the peace of mind that when you pass away, you have done your best to place your affairs in order. 

By expressing your intentions clearly in a will, you may prevent claims against your estate. A professional advisor will keep a file of your will instructions, and if there is a dispute, that file may be of assistance to the court in deciding whether a claim is valid.

Examples of claims that may be avoided if you make a will

A claim that the will is invalid:

This type of claim will be more difficult to advance if:

• a professional advisor was of the opinion that you had capacity to give instructions and were doing so of your own free will
• you expressed clearly the reasoning behind your wishes
• any complex clauses in the will were explained to you

A claim under The Inheritance (Provision for Family and Dependants) Act 1975:

Certain categories of person can bring a claim against an estate if a will (or the intestacy rules) does not make reasonable financial provision for them. Where such a claim is raised, the court will consider all relevant factors. Again, if the will file contains details of the deceased’s reasoning, this will be taken into account.

In order to exercise control over your assets when you die, it’s sensible to make a will, whether or not you own a property. It allows you to make guardian arrangements for your children, to express a preference for your funeral arrangements, and by clarifying your wishes, may prevent claims against your estate.

About the author

Anna Sutcliffe is a solicitor at Wright Hassall LLP, @Wrighthassall. She offers specialist advice about inheritance disputes, including claims under The Inheritance (Provision for Family and Dependants) Act 1975, disputes between executors, and claims in respect of the validity of wills.