What specifically are the problems with dying intestate vs with a will, if you want intestacy rules to apply?

[PetitesVoix]

A couple of years ago I posted asking for advice about my PIL in their 70s who don't have wills because they basically want everything to go to each other, then to adult children exactly as per intestacy rules.

I got lots of nice responses but didn't feel anyone posted a good 'reason' for them to go to the expense of making wills if it would all shake out how they wanted anyway. Can anyone set out specifically what the problems are that occur without wills?

People generally said it was 'a headache' 'a nightmare' but having no experience with these things I'm interested in what and why the headaches are.

For info: they and DH's siblings all love each other dearly, there is no animosity and all siblings comfortably off, PIL live very simply and rurally, their mortgage is paid off, there is zero chance of hidden assets, secret families, affairs, anything like that. Just a house and land. I feel they are perhaps slightly financially naive, but generally with-it and active etc. Lovely grandparents, they are just sweet people.

I mainly want to see if there's anything particular that the siblings can raise if there is a good reason to get wills drawn up. I think they just don't see the point (they dealt with their own parents' deaths but I know wills had been in place for ages there) and I feel uncomfortable talking about it with them as I don't want to seem money-grabbing or morbid, but they would listen to their children. They would certainly want to avoid the kids being put out or having to pay loads to deal with it but I have no idea if this is actually the case.

I don't care who gets anything, just want to avoid an administrative or costly quagmire or deal with any unanticipated issues.

This is separate to the will issue, but they should consider having power of attorney documents drawn up so they have PoA For each other, but so does 1 of their children. Much easier to do this now while they’re fit and active than in 10 years when things have changed and it’s more difficult.

It takes a bit longer to get probate, but the system is basically the same. It's only a "nightmare" if everyone's in a hurry to get their money IMO or maybe if there's a complex family situation.

Assuming England?

My friend’s husband died suddenly, all the main bank accounts were in his sole name. Everyone agreed she was the sole beneficiary of everything but it still took here A YEAR to get access to his bank accounts, because he didn’t have a will and so certain very slow procedures apply. She was living off the charity of family and friends for that year.

It takes 5 minutes to make a very basic will. “I John Smith leave all my property to my wife Jane Smith.” Sign and date it in front of two witnesses who also sign and date it (we popped round to our neighbours house). It is not hard. There are a zillion websites that will help.

Thanks - yes, in England.
I think they have joint accounts for everything (probably just the one).

They are more likely to be open re POA actually as they were looking into this for MIL's mum - MIL cared for her in later life so knows full well what may arise.

I would not count on everyone being sweetness and roses when the time comes to deal with the estate. I’ve seen more than one family torn apart by divvying up estates even where they are all comfortably off and had strong relationships before. Money does odd things to people. I’ve also seen fallings out over burial arrangements so it’s good to have the persons wishes clarified on paper.

With regards to the wills, if there are none someone will need to apply to be the administrator of the estate. It’s more hoops to jump through, takes longer and sometimes you have to explain it to organisations as they don’t always see it. You say they live simply but you will be surprised the amount of organisations your PIL will have ties too.

For the sake of downloading a free template and filling it out and getting some neighbours to witness it, I’d get them to write simple wills.

Worry about a child marrying someone who wants to disrupt things? A messy divorce and a person who has married into the family demanding things for him / her self / grandchildren.....

That wouldn't be any different whether there's a will or not

It is more expensive to deal with the estate. First step is to work out who has the right to apply to deal with the estate. Legislation sets this out.

Then the person with the right to apply has to prove that there is no will in existence. I’m not in England so not sure what would be involved there but in my jurisdiction you must advertise in the local paper asking if anyone has a will for them, write to any trustee companies who are in the business of writing wills, write to the law society who must ask all law firms if they have a will for them and then submit all that information to the probate registry. The registry can ask more questions and if your PIL have moved around over the course of their lives you would be required to provide that information for everywhere they have lived.
My jurisdiction is based on English law so I imagine it would be similar.

Compared to having a will and just handing it over to a solicitor to deal with, it is a hassle for the survivors. If they don’t die at the same time, then the survivor of the two of them will be the person who has the right to apply. Do they really want to put their partner through all that additional work when they are grieving??

It generally takes a lot longer too. The benefit of a will is to make it easier on the people left behind. It also just shifts the cost of making a Will onto those left behind.

You can have a legal will drawn up at minimal cost. Will writers can come to your home, take down all.the details and have a will drafted. 2 independent witnesses to sign, cost me £99 about 3 years back. As quoted upthread, everything could be harmonious right now but relationships within families can and do change. Things can turn toxic very quickly. Much quicker, easier and less expense to have yoir wishes made clearly in a legal and properly drawn up will.
it's honestly not that difficult

Isn't it better in terms of the following: if one of them remarried after their partner's death? Unlikely maybe, but not uncommon at all.

So if they had wills they can leave everything to their spouse, but a clause that their share of the property goes to the children on death of remaining spouse? I think they have to specify a life interest in their share of the house to spouse, but children as actual beneficiaries. I might be talking out of my arse, but this scenario often comes up here.

No if they leave it to the spouse, it's the spouse's to do with as they see fit. There are ways to set up trusts to avoid it, but it doesn't sound like that's what OP's in laws would do even if they wrote wills

Wills don’t have to cost anything. Our home contents insurance includes free will making services for example.

If the house is jointly owned one person can’t just leave their share independently to their children after the other has died. Once the first person dies the house is 100% the other persons to do with as they wish. This is why things are rarely ever as simple as they look and things like wills aren’t just “bits of paper”.

My friend’s husband died suddenly, all the main bank accounts were in his sole name. Everyone agreed she was the sole beneficiary of everything but it still took here A YEAR to get access to his bank accounts, because he didn’t have a will and so certain very slow procedures apply. She was living off the charity of family and friends for that year

I would second the time taken to process things being an issue. My DF died intestate last year (he didn’t mean to, he was in the process of drawing up a Will with his solicitor but it hadn’t been finalised when he died in hospital). Some institutions, eg Santander were excellent and got things sorted extremely quickly. Others, notably NatWest were appalling kept making errors and took months. As next of kin, and being the eldest child, I had to deal with it all for months, which was unpleasant. None of us children were relying on the inheritance money to live day to day though so there wasn’t that complication.

Make sure they understand the intestacy rules, as they don't always end up with everything going to the spouse and then to the children. If the estate is over £270k then the first £270k goes to spouse and the rest is divided equally between spouse and children. It doesn't sound like that fits with their wishes, so they should definitely make a will.

Apart from the general ease of admin there is one very concrete reason to have wills: you can add a survivorship clause.

For a married couple of similar ages there is a real possibility that they might die in the same event at more or less the same time, from a car or plane crash, a house fire, an infectious disease. If they don't have wills then you'd need to follow the full intestacy provisions for one and then the other, which is a pain. If you have wills then you can make all bequests conditional on the recipient surviving you for thirty days, so everything goes straight to the children if you die in the same event.

It takes you so much longer without a will. My very elderly neighbours died within a week of each other and it took their children a year to settle their affairs. My mum died before my dad and didn't make a will for the same intestacy reason, and it took around 9 months. We asked my dad to make a will, which he did, and the process was a lot easier. Simply put, probate and a will kind of give you a key to unlock the doors to settling affairs, rather than having to find someone else who will lend you a key to unlock the door. And then another door, and then another door, and then another door.

Mum’s will reflected intestacy rules but because she named us executors (and I already had LPA for her finances and knew what and where everything was) we had the whole thing done and dusted within a week, and did most of it online.

Wills can be virtually free to write (as per pp above) and make things easier for those left behind. Top tip for executors - choose the two most organised/admin savvy in the family.

Having wills would make life easier for their children at a difficult time.

It would also mean less costs. Companies and banks will be easier to deal with.

I had my will done for £19. I didn't even have to leave home. There are loads of offers around.

I disagree with @Icecreamclassic

I've been the executor of estates with a Will and without and ime many banks and institutions seem to work more smoothly when there's a will. When there was no will there were more hoops to jump through.

Ime using a Will was just easier. Being an executor is emotional enough without extra phone calls and paperwork.

didn't feel anyone posted a good 'reason' for them to go to the expense of making wills if it would all shake out how they wanted anyway.
That is part of will-writing - the whataboutery. The testator may think that things are obvious and cut-and-dried but the will-writer will say "what about this circumstance or that circumstance?". They prompt the testator to think about scenario they hadn't considered.
Also, what about charitable donations in the will: do they not want to make any?

You can get a will made for free in October. see here

First, nobody knows if their current sunny outlook will be over taken by events.

One or both could be physically or mentally incapacitated, need residential care, a competent appointed person with authority to manage their finances and health care. This is very common among elderly people and can happen FAST.

Any of the loving caring offspring siblings could die leaving dependent children/spouse, or be divorced.

What is the value of their non-joint assets? If high, then some might not pass to the surviving spouse, but instead to the children under intestacy. Which in turn could give rise to an inheritance tax bill depending on the values (as part would not then be spouse exempt).