It is one of those matters people often put off dealing with, but it is sensible to make a Will so that the people you wish to benefit from the assets you have at the time of your death, actually do.
The Rules of Intestacy determine the distribution of a person’s estate where they die intestate i.e where they have not left a Will or where there is a Will that has not disposed of all of their property.
How does an individual die Intestate?
A person may die Intestate if :
- they did not make a Will,
- revoked a Will that they had made by an action such as physically destroying the Will with the intention of revoking it; marrying or entering into a civil partnership after making a Will unless the Will states that the person making the Will was making it with the intention of marrying or entering into a civil partnership with a particular individual or
- made an invalid Will.
A total intestacy occurs when a person dies without leaving a valid Will. A partial intestacy occurs when someone dies leaving a valid Will but the Will does not dispose of their whole Estate. The Intestacy Rules apply to the part of the Estate that the Will fails to dispose of.
The Intestacy Rules apply in the same way to spouses and civil partners. They also apply to same sex married couples from 13th March 2014.
Where a marriage or civil partnership is dissolved by a Final divorce or dissolution Order, (previously known as Decree Absolute in divorce proceedings issued before 6th April 2022), or there is continuing judicial separation, the surviving spouse or civil partner of an individual who has died has no right to benefit under the Intestacy. A co-habitant who was not the spouse or civil partner of an Intestate has no entitlement under the Intestacy Rules. They may however be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
The entitlement of the Intestate’s spouse or civil partner is conditional on surviving the Intestate for 28 days. Where two or more people die in circumstances where the order of deaths cannot be ascertained for succession purposes the younger is deemed to have survived the elder.
In the Intestacy Rules the term “issue” includes all direct descendants of an individual. Adopted children and illegitimate children have the same right to benefit from their
Intestate parent’s estate as children born of the parent’s marriage. Step-children are not included as issue.
Anyone who unlawfully causes the death of another is prohibited on grounds of public policy from benefiting from the estate of the deceased. For intestate deaths on or after 1st February 2012 the perpetrator will be treated, under the Intestacy Rules, as if they had pre-deceased the victim.
The Intestacy Rules only apply to property that the deceased could have left by a Will.
The order of entitlement under the Intestacy Rules is set out in section 46 of the Administration of Estates Act 1925 (AEA 1925). This depends on:-
- The value of the Intestate’s estate
- Which members of the Intestate’s family survive the Intestate
The right of a family member to have an entitlement on intestacy depends on their relationship to the Intestate and whether any closer relatives have survived. The general principle is that the estate is shared by the relatives closest to the deceased (who are in the highest category) to the exclusion of the relatives in lower categories. There are more detailed provisions if there is a surviving spouse or civil partner. The spouse or civil partner has priority over all other family members but may have to share the residuary estate (the balance of the estate) in certain circumstances.
Who gets the Estate on an Intestacy?
The distribution rules on Intestacy are considered in two sections:-
- Where the Intestate leaves a surviving spouse or civil partner.
For deaths on or after 1st October 2014 if the Intestate left a surviving spouse then they receive all personal chattels and the statutory legacy of £250,000 or
For deaths on or after 6th February 2020, £270,000 free of tax, costs plus simple interest from the date of death to payment and half of the residuary estate absolutely. Any issue or other descendants receive the remaining half of the residuary estate absolutely on statutory trust.
If the Intestate does not leave any issue or other descendants then the surviving spouse receives everything.
- The second section deals with the situation where the Intestate leaves no surviving spouse or civil partner. In such cases if the Intestate has surviving issue then they will receive the residuary estate on statutory trust and if more than one in equal shares. If however the Intestate does not leave any surviving issue but leaves parents then the parents receive the residuary estate in equal shares. If the Intestate does not leave any parents but leaves brothers and sisters or surviving issue of the brothers and sisters who pre-deceased the Intestate then the brothers and sisters and issue of the brothers and sisters who died in the Intestate’s lifetime receive the residuary estate on statutory trust.
- If the Intestate only leaves half-brothers and half-sisters surviving or surviving issue of half-brothers and half-sisters who predeceased the Intestate then the half-brothers and half-sisters or their surviving issue will receive the residuary estates on statutory trust. If none of the above are alive at the Intestate’s death but the Intestate leaves surviving grandparents then they will receive the residuary estate in equal shares and if there are no surviving grandparents but there are surviving aunts and uncles or surviving issue of aunts and uncles who pre-deceased the Intestate they will inherit the residuary estate on statutory trust. If none of the above are alive but there are surviving half aunts and half uncles or surviving issue of half aunts and half uncles then they will receive the residuary estate on statutory trust and if none of the above then the residuary estate goes to the Crown.
If you wish to avoid a certain class of people inheriting your estate upon your death then you should seriously consider making a Will. If you wish to make a Will then do not hesitate to contact RJT Solicitors on 01257 228027 or rachel@rjtsolicitors.co.uk
