What is intestacy?

Intestacy law-Last Will and TestamentIn law, someone who passes away without a written Will is described as dying ‘intestate’. The person’s estate will then be distributed under the Intestacy Rules, set out in the Administration of Estates Act 1925 and amended by the Inheritance and Trustees Powers Act 2014 (ITPA 2014).

What are the implications for your loved ones?

Under intestacy rules, only married spouses or civil partners are entitled to inherit the estate of the deceased. The rules do not recognise “common law partners” as the term has no legal definition, meaning your rights as a cohabiting partner are not the same as that of a married partner or a civil partner. Here’s an example: if you have lived with a partner for 50 years, but never married or entered into a civil partnership and one of you passes away, the surviving partner will not be entitled to anything at all. The only certainty you have to make sure that your wishes are followed is to make a Will.

It’s worth noting that civil partnership, created in 2004 to give same-sex couples similar legal and financial protection to a marriage, is set to change in England and Wales following the recent Supreme Court ruling. It will allow all couples to choose between marriage or civil partnership.

How an estate can be divided

If a person is married, has no children and dies without a Will, the surviving spouse inherits everything. However, if the deceased has children, and leaves behind an estate worth more than £250,000, the surviving spouse inherits the first £250,000 and any personal possessions, with the remainder divided between the spouse and children.

If the person is unmarried or not in a civil partnership but has children, then the children stand to inherit all of it. The situation becomes increasingly complex and potentially problematic when there are no surviving partners or children. Living relatives then stand to inherit the estate in this order:

  • Parents
  • Brothers, sisters or their children (or children’s children etc)
  • Half brothers, sisters or their children (or children’s children etc)
  • Grandparents
  • Uncles or aunts (brothers and sisters of the whole blood of a parent) or their children (or children’s children etc)
  • Uncles and aunts (brothers and sisters of the half blood of a parent) or their children (or children’s children etc)

Children are only allowed to receive the inheritance if they are 18 or above, or if they are married or in a civil partnership while under 18. Until then a trustee will manage the estate on their behalf. It should also be noted that legally adopted children are entitled to inherit under intestacy rules, but stepchildren are not, unless they have been legally adopted.

Bona vacantia and discretionary grants

When the list of relatives is exhausted and none are found, the estate will go entirely to the Crown under what is known as Bona Vacantia, where the Treasury Solicitor becomes responsible for it. The Crown may make grants from the estate under certain conditions. If a person who is not a surviving relative believes that they have a good claim, they may seek financial provisions by applying under the Inheritance Act 1975 (Provision for Family and Dependents) for a discretionary grant.

Making a “Deed of Family Arrangement”

It is possible to change the way the estate is distributed in the event of a death without a Will. Known as a Deed of Family Arrangement or Deed of Variation, the application can be made within two years of the death, with the condition that all the beneficiaries under the rules of intestacy all agree to the change. This can allow people who would not otherwise qualify to inherit some of the estate, or for the apportionment of the estate to be revised. This, however, may require legal advice on your part.

To avoid the unintended consequences of the Intestacy Rules, writing a Will is the best thing you can do for real peace of mind for you and your family. If you would like more information about how best to protect your family by making a Will, please call our experienced Wills and Probate team on 0208 520 4555 from your mobile or complete our Free Online Enquiry and we’ll be in touch shortly.

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