What Is Intestacy In The UK
Introduction - What Is Intestacy In The UK?
When someone dies, there’s a lot to sort out, with the executors carrying out the instructions laid out in the Will.
However, not everyone leaves a Will when they die; this is known as intestacy.
If no Will is left, the property of the deceased must be distributed according to intestacy laws. In some cases, a Will might not be accepted as legally valid; this is also treated as intestacy.
The UK has strict laws about who can inherit under intestacy and how the estate must be distributed. Here’s a closer look at how intestacy occurs and how it’s dealt with.
What is Intestacy?
As described above, not everyone leaves a Will when they die. This is a straightforward case of dying intestate.
More complex situations may arise when a Will is left, but it’s not legally valid.
Some common problems which often occur with Wills include:
• Not following the formal requirements to make a Will
• Not taking account of all money and property to be distributed
• A beneficiary dying first
• Changes to the Will not properly administered
• Marriage, civil partnership or divorce/dissolution thereof
• Failing to consider how dependents not named could contest the Will
Not all of the above means that a Will will be treated as not valid. However, in the worst case scenario they could mean that a Will is either not accepted at all, or the estate is subject to partial intestacy rules.
There are some things which are more problematic, and will lead to a Will being completely set aside.
A Will must meet the following requirements:
• The person must be aged 18 or over
• The Will must be drawn up voluntarily without any coercion or pressure
• The person making the Will must be of sound mind. This means being fully aware of the contents of the Will and the implications
• The Will must be in writing, signed by the person making the Will and witnessed by two people
That’s a very simplified overview. Some of the rules are more complex, such as anyone who witnesses the Will loses their right to any inheritance within it. That’s why beneficiaries can’t act as witnesses. It’s also considered good practice to ensure that the beneficiaries aren’t even in the same room to prevent any claims of coercion.
If a Will does not comply with all the requirements it will be set aside and the individual treated as dying intestate.
What Happens When You Die Intestate?
If you die without making a Will, your property, money and assets still need to be shared out. Likewise, your debts will also need to be dealt with. Your wishes will be irrelevant if no valid Will was left; instead, the whole estate will need to be dealt with in accordance with the rules of intestacy in the UK.
Estate is the word that’s used to describe everything that’s left behind when someone dies. Rather than having Executors of a Will, there will need to be Administrators of the Estate. A formal document known as Letters of Administration can be applied for; this gives an individual the legal right to distribute the estate.
However, even when someone has been granted Letters of Administration they must still distribute the estate in accordance with intestacy law. They cannot make personal decisions about how to distribute the estate in line with what they know the deceased would have wanted.
This means that individuals may inherit money or property even if it’s well-known that the deceased would not have wanted them to receive anything. Conversely, others who the deceased would have wanted to protect could be left without anything from the estate. This is why it’s so essential to write a Will before you die, and to ensure that it is legally valid and binding.
The Rules of Intestacy
The Inheritance and Trustees Power Act 2014 stipulates how an estate must be dealt with in the event of intestacy.
In some cases there may be partial intestacy; this is where the Will covers some of the estate, but not everything. If there is partial intestacy, the rules of intestacy apply to the elements which aren’t included in the Will only.
Before looking at the rules of succession, the following should be noted:
• For a spouse or civil partner to be classed as a beneficiary, they must survive the deceased by a minimum of 28 days
• Unless the deceased was married or in a civil partnership, there are no automatic rules of inheritance for their partners, even when cohabiting
• Legally adopted children are treated as the deceased’s children
• Stepchildren cannot inherit anything under the rules of intestacy
We’re now going to look at the rules of succession and how the estate is distributed under the rules of intestacy.
Distribution of Assets
In 2014 the laws around intestacy in England and Wales were altered to the benefit of the spouse or civil partner. Therefore any intestate deaths which occurred prior to October 2014 will have been subject to different rules than exist today.
The following sets out the order in which the estate will be distributed to the surviving family members.
Spouse/civil partner - no children
When the deceased is survived by a civil partner or spouse, but there are no children, the entirety of the estate will pass to the spouse/partner.
Spouse/civil partner and children
Where the deceased is survived by a spouse or civil partner and children, the first £270,000 of the estate plus a further half of the remaining estate will be inherited by the spouse/civil partner. If the estate is worth less than £270,000 the spouse/civil partner will inherit everything.
The remainder of the estate is to be split equally between children. If any of the children of the deceased have died, their offspring will inherit their share.
The chattels and personal effects will all be inherited by the spouse/civil partner.
Children - no spouse/civil partner
Where the deceased is survived by children but no civil partner or spouse, the whole estate is split equally between the children. If any child has died, their inheritance should be passed to their children.
Parents
Where there are no children or a civil partner/spouse but there are surviving parents, the whole of the estate is divided between the parents who are still living.
Siblings
If the deceased has no surviving spouse/civil partner, children or parents, the next in line for succession are full-blood siblings. The whole estate will be divided between full-blood siblings. If any sibling has died, their share will pass onto their children.
Half-blood siblings
If the deceased has no spouse/civil partner, children, parents or full-blood siblings that survive them, their estate will then pass to any half-blood siblings. The content must be split equally and if any half-sibling has died, their share should be given to their children.
Grandparents
When an individual has no surviving spouse/civil partner, children, parents, full-blood siblings or half-blood siblings, the next in line are any surviving grandparents. The estate must pass in its entirety and be split equally between any who are still living.
Uncles and aunts
Where the deceased does not have any surviving spouse/civil partner, children, parents, full-blood siblings, half-blood siblings or grandparents, any full-blood aunts and uncles will inherit the estate. A full-blood aunt or uncle is one who is born to both grandparents. The estate must be divided equally between all aunts and uncles; if any have died, their share should be passed to their children.
Half-blood uncles and aunts
The final family members who can inherit under the rules of intestacy are half-blood uncles and aunts. The estate must be divided between them equally if there are no spouse/civil partners, children, parents, siblings, half-blood siblings, grandparents or full-blood aunts and uncles. If any half-blood aunts or uncles have died, their share must be passed to their children.
None of the above
Where there are none of the above surviving family members, the estate is considered legally to be ownerless: Bona Vacantia. As such, it will pass in its entirety to the Crown or when in Lancashire or Cornwall, the Duchy.
Avoid Intestacy Rules
As can be seen from the above, the intestacy rules are very inflexible and mean that those who you want to inherit your estate could end up losing out. However, there may be times when there are problems with Wills too, such as difficulty tracing beneficiaries or relatives.
Read further articles on tracing beneficiaries of Wills