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.

Planning for your business after your death

Planning for your business after your death

I hear people using the term “Business Will” on a frequent basis, inferring there is a separate document for your business at your death.  However, a Business Will is a Will that recognises the existence of the business in the assets of the deceased and plans accordingly.

Too often I see business owners assuming that it is the right thing to do just to let the business fall into their estate at death, “just pass to the wife/ husband”.  This usually means they have not had the appropriate discussions nor the correct advice for them and their circumstances.  This could end in disaster for their business, their widow and their family. Also, why wouldn’t you protect your life’s work?

The ramifications of poor planning for your business in a Will is too detailed to cover fully in this blog but here are a few tasters.

If your business a sole tradership

Do you have business continuity clauses in your Will?  If you don’t, then your business assets will require a Grant of Probate, along with the rest of your personal assets.  This means those assets are frozen until a grant is produced and this can take many months.  Would your business survive being frozen for that length of time?

Without continuity clauses, a sole tradership can only be sold or wound down and cannot continue to trade.

Contracts of employment cease at your death, can your business run without staff?

If your business is a partnership

If nothing is pre-stated, your partnership ends at your death as one of the partners is now no longer acting. Action now needs to be formulated as to how the “new” business carries on.

If your business is a Limited Company

If there are no directors as you were the sole director, your estate now needs a grant of probate, and your executors will have to appoint a new director to run the business in the meantime.  Do your executors realise this and understand their responsibility

However, the missed opportunities of not having those bespoke discussions about the business you have worked so hard for many years are

    • What happens to the business at your death – 
      • is it sold
      • Can you be replaced with putting another manager in 
      • MBO?
      • Continuity plan
    • Do you have certain members of the family in the business and not others, for example, has your daughter worked in the business and been involved in running it but your son hasn’t? So, do they benefit equally from the business or not and does the other child get compensated?
    • Business Property Relief – does the business qualify?  Is it trading or investment?  Does it comply with the wholly or mainly rule?
    • How much cash is in the business?  How much can be seen as working capital?
    • Do we need to utilise the business for inheritance tax planning?
    • If your spouse inherits the business, what if they remarry/ go into care?
    • Does your spouse need an income?
    • Will the business value affect your residence nil rate band at first and/ or second death?

ALL businesses need a disaster plan, but this is often thought to have to do with natural events, or supply issues, or even cyber-attacks for example. However, your death could constitute a disaster for your business and all related to it, your staff, the stakeholders and your family members.  Therefore, it is vital to incorporate this in assessing risks for the business.

Don’t assume you don’t need to plan for your business at your death.  Have an informed discussion and plan accordingly. Act now before your life’s work is wasted.

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.

Administering an Estate

Administering an Estate

No one wants to think about death. Not their own death, nor especially that of a beloved family member or friend. We help our clients to prepare themselves both practically and mentally, and in some cases emotionally, for that inevitable moment. It can be a huge relief for some to know that their affairs are in order. For others, it is very trying and difficult making all the necessary decisions.

When a loved one sadly passes, there is a huge amount of work to be done. This, despite the fact that you are often barely functioning because of their loss. One of our team recently lost her mother and she is keen to share her practical thoughts and experiences with our readers. She found there is little straight-forward guidance available generally and of course most of us are administering an estate for the first time.

Make an Appointment with the local Registry Office

The initial hurdle to overcome is making an appointment to register the death at the deceased’s local Registry Office. (I am sorry – I’m going to refer to the person who has died as the ‘deceased’ for the purpose of clarity but I do recognise that no term is ideal.) You will need a ‘Medical Certificate of Cause of Death’ from the doctor in order to be able to do this. You will also be asked for various pieces of information and copies of documents but you will be advised exactly what is required.

‘Tell Us Once’ service

Do use their ‘Tell Us Once’ service as this undoubtedly saves you time and, more importantly, heartache. On your behalf, the Registry will contact HMRC (tax office), Passport Office, DWP (benefits), DVLA (driving licence) and the local council (possibly care fees). Again, various documents will be requested from you; do try to find them all. It may be that your loved one was due a tax rebate.

Arrange the Funeral and/or Memorial Service

The only other urgent task is to arrange the funeral. You may already know the deceased’s wishes or they may be detailed in their Will. (I hope they wrote one.) The deceased may hold a pre-paid funeral plan which may also detail their wishes but will certainly cover the basic costs. Opt for the earliest date you can for the funeral; you will not be able to move on until it has taken place. You may wish to think about placing an announcement in a local and/or national newspaper regarding the death and the date of the funeral. Once all this is done, you might want to take a breather as there is still much to be done, even if the estate is relatively simple. 

Gathering Finances

Once you can face it, you need to establish where the deceased held their ‘sole’ funds. (Joint funds will automatically pass to the other named account holder(s) according to the Laws of Survivorship.) This could include banks, building societies, Premium Bonds, financial advisors (ISAs/Bonds) etc. Register the death with each organisation and request a final valuation statement to be sent to you. (Do ask for a number of copies of the death certificate when you register the death. Whilst all organisations will return original copies to you, these certificates are like gold dust.) Do the same with all pension companies, including the DWP, if you didn’t use the ‘Tell Us Once’ service.

Your heart will be broken many times over the next few weeks as these organisations blandly respond to ‘The Late ________’ or the ‘Pers Reps (personal representatives) of _________’. It is shockingly impersonal. Do however retain all the documents received for your records. 


You may need to go through Probate, you may not. Probate is the Latin word meaning ‘to prove’ so probate is the process of ‘proving’ the deceased’s death, who their personal representatives are, whether or not there is a Will, the assets etc. Each financial institution has its own rules and investment levels at which Probate needs to be done. Check with every financial institution where the deceased held ‘sole’ funds. Unfortunately, even if only one institution requires Probate, you will have to go through the process. Probate will also be required if the deceased held their property as Tenants in Common with a spouse or partner or individually. (You can check this via the Land Registry.)

Do go to the government website (https://www.gov.uk) and search under ‘Probate’. This site contains lots of really useful information, probably too much! From here, you can download all the necessary forms:

  • PA1 – complete by hand to apply for probate
  • PA2 – explains ‘How to obtain probate without using a solicitor’
  • PA3 – details probate fees (£215 at the time of writing)
  • PA4 – gives addresses of local Probate offices.

Tax forms for Inheritance Tax

You will also need to complete a tax form for inheritance tax purposes, even if there is nothing to pay. Complete form IHT205 if no tax is owing; complete IHT400 if inheritance tax is owing. If you struggle with either form, call one of the contact numbers or seek professional advice.

‘Swear an Oath’ at the Probate Office

Having sent off the necessary documents, you will need to arrange an appointment to ‘Swear an Oath’. Only one of the Executors needs to do this if you prefer.


If there are any Trusts in the Will then these must be implemented within two years of the death. They cannot simply be ignored and need to be set up even if they are immediately closed again. A solicitor will be able to help you with this aspect of the estate administration but a fee will be payable for this service.

Distribute the Estate

Once you have all the final fund valuations, draw up an income and expenditure statement of the estate i.e. all the in and out payments. This should include any debts owed by the deceased. All debts must be settled prior to making any payments to beneficiaries. Circulate the income and expenditure statement as appropriate and distribute the estate.

Contact the Office of the Public Guardian

Lastly, (as if you haven’t already tackled enough bureaucracy), you should cancel any Enduring or Lasting Powers of Attorney held by the deceased. These are ‘lifetime’ documents and they cease to be of use once the Donor (the person who drew them up) has died. Send the original documents (there may be one for Finance and a separate one for Health) along with a copy of the death certificate and a covering letter to the Office of the Public Guardian to get them cancelled. They should not merely be destroyed.

Administering an estate is not pleasant but there is a certain satisfaction, and of course, relief, in seeing your loved one’s final wishes carried out as they wanted them to be. Alternatively, if it is a complicated Estate or you are lacking time, you could consult with an Estate Administration service.

Does having a Will mean I won’t need Probate?

Does having a Will mean I won’t need Probate?

Actually, the statement I hear is “I have a Will so I won’t need probate”.  Let’s clear this up now, THE TWO ARE NOT LINKED. Yes, they are both relevant to death but one does not negate the need for the other.

A Will is a legal document drawn up in your lifetime.  It enables you to specify the beneficiaries of your estate and how it is distributed.  Your estate may comprise of possessions, money, property and land.  A Will also enables you to state who you wish to administer your estate at your death i.e. your Executors.  Lastly, it also means you can control who are the guardians of your children under the age of 18.

If you don’t have a Will, at your death you are said to have died ‘intestate’.  For more information, see our intestacy blog.

However, PROBATE (from the Latin word meaning ‘to prove’) is the legal process that happens when you die.  The main purpose of Probate is to give a person (or people) the legal authority to administer your estate. These people are called Personal Representatives (PRs).

Probate enables the PRs to access your assets at your death, such as your bank accounts, property and pensions. It means they can do things such as:

  • Finalise utility bills
  • Sell or transfer property
  • Gather in assets, including pensions, stocks, shares and savings
  • Liquidate (sell) all the assets in your estate
  • Pay any outstanding debts using funds from the estate
  • Calculate and pay any income tax or inheritance tax due
  • Distribute the estate to beneficiaries (as set out either in your Will or via the Law of Intestacy).

I think the reason people often get confused regarding Probate is because Probate is not always required at death. There are two main reasons why Probate may not be required at your death:

  • You own all your assets JOINTLY usually with your partner or spouse who is still alive. In this case, at your death, all your assets would pass automatically to the other joint owner according to the Law of Survivorship; therefore no administration is required.  This is why I often hear “we didn’t need probate at my dad’s death so why do we need it now that my mum has died?”.  At the father’s death, all the assets were owned jointly between mum and dad so passed automatically at his death to the mother.
  • There is very little in your estate i.e. it’s a small estate. Financial institutions such as banks and building societies all have their own individual Probate threshold.  So if, at your death, you have a certain value of savings in a bank and that amount exceeds the bank’s Probate threshold, the bank will need a ‘grant of probate’. Without this, the bank won’t release those funds to your executors or PRs so they may be distributed to the beneficiaries.  To make life a little trickier for your PRs, every establishment has a different threshold.  So, the same amount may trigger the requirement for a ‘grant of probate’ at one bank but not at another!!  So, it could happen that if the value of your estate is held in several banks and the level of funds in each is under that bank’s threshold, no Probate will be required.

Importantly, do bear in mind that if a property is not owned jointly (i.e. as joint tenants) but it is owned as ‘tenants in common’ then a ‘grant of probate’ is ALWAYS required.  This is why a ‘grant of probate’ is often required at the second death of a couple – the property passed to the joint owner at first death but is now owned solely by the remaining spouse; at their subsequent death, a ‘grant of probate’ is required.

So, you see that a Will and Probate are totally separate concepts; the Will enables you to say how your estate is to pass at your death; Probate is the legal authority for your PRs to carry out the wishes in your Will.  It is not the Will that dictates whether Probate is required but instead what your estate is comprised of.