Dying without a Will, and the Law of Intestacy

Dying without a Will, and the Law of Intestacy

I think we all know that dying without a Will is not a good idea but do we really know why?  Most people think of the potential financial hardships but there are more emotional and emotive reasons also.

Let’s start with what happens if you die without a Will and who gets what.  Dying without a Will is called dying INTESTATE.  There are statutory laws – called the Law of Intestacy – that govern how your estate will pass if you die without a Will.

Remember that any assets owned jointly will NOT be governed by your Will or the Law of Intestacy.  Instead, those joint assets pass by the Law of Survivorship, i.e. the remaining joint owner(s) get the lot. So, if you and your partner/spouse own everything ‘jointly’, should you die, your partner/spouse gets everything. However, anything not owned jointly (i.e. any assets solely owned by you) will fall according to the Law of Intestacy.

So, now it depends on whether you are married or not?  If ‘yes’, then the next question is ‘do you have children’?  If ‘no’, then your spouse inherits the lot but don’t forget that is also the case if you are separated but not yet divorced.

However, if you do have children, it gets a little trickier. As per recent changes made to the statutory gift which come into effect on 26th July 2023, your spouse will now receive the first £322,000 of your estate.  So, if you do not solely own more than £322,000 your spouse receives your entire estate.  However, if your estate is in excess of £322,000 that excess balance will be split 50% to your spouse and 50% to your children (held in trust until they are aged 18).  Your personal chattels go to your spouse.  This can cause many obvious difficulties, especially if your spouse is not the parent of your children.  

If you are not married, it gets even trickier.  If you have children, they receive your entire estate, NOT your partner – even if your partner is the parent of your children!  If you don’t have any children, your parents will receive your entire estate – these monies may end up going on their care fees.  If your parents are not alive, your estate falls to your siblings and of course down to their children (your nieces and nephews) should your siblings die before you.  Do you really want your nieces and nephews to inherit rather than your partner to whom you aren’t married?

If all that fails, the next level down is to your half-siblings, then grandparents and then aunts/uncles and of course their children should they die before you. If all that fails… then your estate passes to The Crown!!

So, you can see why the Law of Intestacy is often called a ‘blunt instrument’!

There are other aspects that are often not thought about.  If you haven’t got a Will then you haven’t nominated your own Executors and Trustees.  The former are the people to whom you give the responsibility of administering your estate and body.  The latter, often the same people, are those who manage monies and trusts on an ongoing basis. If you haven’t nominated your own Executors and Trustees then it will be down to those closest to you to act as your Administrator.

There are strict rules as to who can apply to be your Administrator. The order is as follows: the surviving spouse where the deceased was married or in a civil partnership; children of the deceased; grandchildren; surviving parents; surviving brothers or sisters; nephews or nieces; another relative.

Let’s take a look at that list.  What if you don’t like or trust or get on with any of those people?  They are now in charge of disposing of your body, organising your funeral, distributing your money, liaising with the family and the ongoing management of money and trusts.  Are there any people on this list within your family who you would not like to act in such a way on your behalf?

What about all the aspects of your life that won’t be reflected in the Law of Intestacy?: gifts to family and friends; gifts to stepchildren; care of pets; gifts to charity; guardianship of children; ongoing management of your business; excluding estranged beneficiaries; tax planning… to name but a few.

Heartache, family disputes and financial hardships may all occur at what is already a very difficult time.  Do you want that for your loved ones?  No, of course you don’t, so go to the effort and expense of having a well-crafted Will to make sure your wishes are adhered to.

As always, we would be delighted to talk this through with you so do email us on office@hamiltonlegacy.co.uk or call the office on 0191 406 0747.

Help! I don’t know anyone to be my Executor

Help! I don’t know anyone to be my Executor

Very often my clients nominate family members or close friends to be the executor and hence trustee within their Will.  However, some people are not that lucky or able.  This doesn’t happen often but I do get clients who have no one to be their executor/trustee, either because they have a very reduced circle of family and friends, for whatever reason, or because there is no one they trust to take on that role.  Sometimes there is a combined situation where they want to nominate family members but recognise that those people will need help from a professional, maybe because the estate is complex, or the circumstances are complicated.

Using a professional executor, either solely or combined with others, can often be the solution.  Here are some pros and cons associated with using a professional executor:


    • They have the expertise to take on what can often be a very onerous role.
    • The liability is with them rather than the designated family member.
    • Administering an estate takes a lot of time, effort and diligence which many laypersons do not have.
    • They understand and can deal with the income tax implications at death.
    • They understand and can deal with the inheritance tax implications at death.
    • They understand the reporting procedures to HMRC at death, including the registration of trusts on the Trust Registration System.
    • They will set up appropriate trusts dictated by the Will.
    • They will be objective over decisions that may be emotive for family members.
    • The better companies will pay all costs upfront so that your family don’t have to and will not expect to be paid themselves until funds have been released from the estate.
    • They will deal with charities, which can be quite a challenging task.
    • They will set up appropriate bank accounts and accounting systems.
    • The better companies work on a fixed fee which you will be made aware of upfront.
    • Professionals will take away any arguments and hassle that plague families at a difficult time which can be fuelled by the rigour of estate administration.


    • They will charge a fee for their services whereas family members tend to work for free
      The control is taken away from the family, although most companies will offer various degrees of engagement regarding the estate
    • Hamilton Legacy has a bank of professional executors that it can recommend so you can select the one that best fits your family dynamic.
    • When people decide to nominate a professional executor in their Will, we always suggest that they ensure the professional concerned would renounce for free at the time of death just in case the family decide that their services are no longer needed.
    • Other families/executors come back to us at death and ask for help in administering their loved one’s estate and we can then refer them to our bank of professionals.

As always, we would be delighted to talk this through with you so do email us on office@hamiltonlegacy.co.uk or call the office on 0191 406 0747.

Do I need to put my house into Trust?

Do I need to put my house into Trust?

Many clients come to me as they feel they need to put their house into trust – often “as a priority”.  Others ask me to advise their elderly relatives regarding their properties.

This is a specialised area that needs to be viewed on a client-by-client basis as every estate is different.  For many clients, I must inform them that a trust is not right for their circumstances, for others, we can offer several solutions. However, for everyone, we must consider the following areas:

    • Why do they feel they need to put their home into trust?
    • Do they need a Will trust or a lifetime trust?
    • What is their income, as individuals and as a couple?
    • What are their savings, as individuals and as a couple?
    • Are any of their savings disregarded
    • What is the state of their health as individuals at the time of putting the house into trust?
    • Would they need to consider downsizing to release capital to help fund their retirement or other activities?
    • What is their inheritance tax liability – do they need their residence nil rate band?

As you can see, this is not a one-size-fits-all scenario.

There are many misconceptions and much misinformation around the subject, such as the following;

    • “Putting your house into trust will help with inheritance tax planning” – incorrect, if you have the right to live there, and enjoy the benefit of living there, the house will still be taxed as yours at your death.
    • “Your house is safe after 7 years” – incorrect, the 7-year rule is a fictitious one, often confused with inheritance tax planning.
    • “I have given my house away or intend to do so, to my children” – this is fraught with danger as your children now own your home.  You have no security.  If you fall out with them, or they get divorced or into money problems, your house is now vulnerable.

We have been advising our clients regarding house trusts for many years.  If you feel you have now got the stage in life where you would like to consider your options, we would be delighted to talk this through with you so do email us on office@hamiltonlegacy.co.uk or call the office on 0191 406 0747.

Do I need to change my Enduring Powers of Attorney to Lasting Powers of Attorney?

Do I need to change my Enduring Powers of Attorney to Lasting Powers of Attorney?

We have been helping our clients for over 21 years, which includes a time when Enduring Powers of Attorney (EPAs) were the only tool we had to assist should we lose our mental capacity. We wrote many EPAs pre-2007, which is when the law changed, but the vast majority of our clients have now chosen to update their EPAs to LPAs (Lasting Powers of Attorney). However, we have clients out there who still have Enduring Powers of Attorney and there are many people (not our clients) who are under the illusion that their EPAs are sufficient. So, for those people who still have EPAs, here are a few pointers as to why you might wish to consider updating them now:

    • Your EPA cannot be registered on the Government register until you have lost your mental capacity. But, your EPA cannot be used by your attorneys until it has been registered. It is currently taking six months to register any power of attorney so this means there will be a 6-month delay in your attorneys being able to assist you should you lose your capacity.  LPAs, on the other hand, can be registered straightaway so they are ready to be used as and when required.
    • In addition, there is an extra, compulsory, safeguarding procedure that forms part of the EPA registration process. As much time may have passed between when you set up your EPAs and when you need to use them, it is necessary that your attorneys notify a prescriptive, and potentially lengthy, list of relatives before they may apply to register your EPAs. This can involve writing to remoter relatives with whom you are no longer in touch. Either way, this is a time-consuming process but one that does not have to be followed when you register LPAs. In any event, were you to opt to draw up new LPAs, we would register these for you at the time as part of the service we offer to our clients.
    • Your EPA is restricted to your financial affairs only. However, you are also able to set up an LPA for Health & Welfare matters which enables your chosen attorneys to make critical decisions for you such as your care package, whether you get cared for at home, whether you need to go into care and, if so, which care home. It also enables them to speak with the medics and the social workers concerning matters such as medication but, more importantly, life-sustaining treatment decisions. Many people assume that their spouse and close family will automatically have the authority to manage these areas of their lives but they don’t. Of course, they will be involved but the ultimate decisions can only be taken by third parties such as medics and social services if you don’t have a Health and Welfare LPA in place.
    • You may only have named your spouse as your attorney on your EPA and this may no longer be appropriate. You may wish to nominate others who can work with or independently from a spouse or partner.
    • You may only have listed one of your children as an attorney as the others were too young to act but now you may wish to include more family members or friends to act on your behalf.  This is of course possible with an LPA.

This is certainly not an exhaustive list of reasons to take out LPAs so if you would like to discuss this topic with us further then please contact us on 0191 406 0747 or office@hamiltonlegacy.co.uk.

Do I need Business Lasting Powers of Attorney?

Do I need Business Lasting Powers of Attorney?

Before I answer that, I feel we should ask a different question and that is “do I need a Lasting Power of Attorney at all?”

That one is simple to answer and that is “YES OF COURSE!”.  

Mentally incapacity is so often just thought of as dementia and Alzheimer’s disease, but of course it can be relevant to any age through strokes, car accidents, sporting accidents, household accidents, operations that go wrong – to name a few.

Everyone who has assets needs a Property and Finance Lasting Power of Attorney (LPA).  If you were to lose your mental capacity then any asset in your sole name is now locked, as you are the only person who is allowed access to it.  Even joint assets could be frozen as when the bank or third party finds out you are now vulnerable, they have a duty to protect that asset and hence lock it from everyone, even the other joint account holders.  

So that will include your business bank account, even though you may have other signatories.  Hence, how will your staff be paid, or your services or suppliers?  How long would your business last?

So, you have established that you require a Property and Finance LPA which can be used for the business, but do you need a specific business LPA?  This depends on who you wish to run your business on your behalf.  If the attorneys you have named on your personal Property and Finance LPA are the same people that you want to manage your business, then the one document can facilitate this.

However, if you wish to name someone knowledgeable within the business on the LPA but do not wish them to have access to your personal affairs, or you may have a personal attorney who you do not wish to be involved in the business, then you will require two documents; a business LPA, restricted just to the business and a personal LPA restricted to all assets except the business assets.  You may have attorneys that are named on both documents.

As always, this is a specialised area and so appropriate professional advice is highly recommended.  If you require a conversation about your own circumstances, then please call us at Hamilton Legacy on 0191 406 0747, or
email us at office@hamiltonlegacy.co.uk, we would be delighted to talk this through with you.