The rules of intestacy: where there’s not a Will, there’s a way
Death. The last curtain call, the great leveller, the final destination. When a person dies, they will, one hopes, leave their relatives and friends with a trove of cherished memories. But that is not all. They will also leave behind an estate, which is everything the deceased owned at the time of death, including all their property, assets and entitlements. The manner in which this estate is dealt with depends upon whether or not the deceased made a valid Will.
Valid Will vs. No valid Will
If the deceased left behind a valid Will, then that document governs the arrangements for the estate. Under the terms of the Will, one or more executors are appointed, and their job is to prove the Will to the court, obtain a grant of probate and, thereafter, wind up the estate and distribute the proceeds to the beneficiaries in accordance with the deceased’s wishes, as set out in the Will.
However, if the deceased did not make a valid Will, then they are said to have died ‘intestate’. No executors are appointed and no beneficiaries named. In this case, the law takes over by means of the rules of intestacy which set out how the estate will be divided, in strict order.
The intestacy ‘tree’
If the deceased was married at the time of their death, then the surviving spouse is the first beneficiary. However, if the deceased also left children, then the first £270,000 of their estate will go to their spouse, along with any of their personal possessions. Any balance over £270,000 will then be divided, with the spouse receiving 50% and the children the other 50%, divided equally between them if more than one.
If the deceased left neither children nor grandchildren, then the surviving spouse will inherit the entire estate.
If the deceased was not married at the time of their death (either because of divorce or the previous death of a spouse) but did have children, then that child or children will inherit the whole estate and, if more than one child, in equal shares. If the deceased left no surviving children but those children left children, the grandchildren of the deceased, then the grandchild will inherit the whole estate and, if more than one, in equal shares.
If the deceased left no surviving spouse, children or grandchildren then the parents of the deceased will inherit the estate and, if both parents are alive, then in equal shares.
If the deceased left no surviving spouse, children, grandchildren or parents, then any siblings of the deceased will inherit and, again, in equal shares if more than one.
In the absence of all of the above relations, then any surviving aunts and uncles of the deceased will inherit and, if more than one, in equal shares. If there are no surviving aunts or uncles, then their surviving children, cousins of the deceased, are next in line.
If the deceased left no surviving family whatsoever, then the estate may be regarded as “bona vacantia”, which means that it forfeits to the government.
Applying to the court for a grant
When a person has died without a Will, there are obviously no appointed executors and no Will to prove. Under the rules of intestacy, the person who stands to inherit under the rules, known for these purposes as next-of-kin, is the person who has the right to apply to the court for a grant.
Where there is an intestacy, the next-of-kin must apply for a grant of letters of administration. Assuming the application is granted, the next-of-kin will be appointed as the administrator of the estate, with all the same powers and duties of an executor. The administrator is under a duty to wind up the estate and distribute the proceeds in accordance with the rules of intestacy.
Who is excluded?
The rules of intestacy do not recognise common law relationships or co-habitation arrangements, regardless of how long-standing they may be. A co-habiting partner, boyfriend or girlfriend has no rights whatsoever to any part of their deceased’s’ partner’s estate, nor are they entitled to apply for the grant. They may have a claim on the estate if they were maintained by the deceased.
Step-children and step-parents are also excluded. The law only recognises formally adopted children as children of the deceased. Again, a step-child may have a claim on the estate if they were maintained by the deceased.
The UK intestacy rules make no accommodation for modern family arrangements; one of the many drawbacks of dying without a Will.
Make a Will
Every adult should have a Will and, if they don’t have one, they should make one, and sooner rather than later. Many people wrongly assume that everything will go to their spouse or partner when they die but, as explained above, that is simply not true. Most people want to rest assured that their estate will be distributed in the way they wish and the only way to ensure that will be done is to make a Will. It is not a difficult procedure and generally not a costly one either, so consult a solicitor as soon as you can and get it done. Later may be too late.
For further information and trusted legal advice regarding Wills and Probate, get in touch with our team at Carlsons Solicitors