What is Intestacy? Advice from our Wills Lawyers
If a person dies without a will or a valid will in place, they are known to have died intestate.
When this happens, the deceased person’s assets are disrupted in accordance with the rules of intestacy laid down in law.
What are the rules of intestacy?
In England and Wales (there are different rules for Scotland), there is a statutory set of rules that are enforced if you die intestate.
This means that your estate would be divided using these fixed set of rules. Your intentions would not be taken into account. For example, how you would have liked the estate to have been distributed would not be taken into account. In some instances, your estate could be distributed in a way you did not intend it to be.
Who would receive an inheritance under the rules of intestacy?
In simple terms, your estate would be divided in the following way:
- If you are married with no children
Everything goes to your spouse or civil partner.
- If you are married with children
Your spouse/civil partner receives everything up to the value of £270,000 and half of any remainder. The other half of the remainder is shared equally between the children.
- If you are not married and have children
Everything is shared equally among your children.
- If you are not married and have no children
Everything will be shared equally among one of the following groups of people (if they exist) in this order of priority:
- Siblings (or their children if your siblings are deceased)
- Uncles and aunts
It is incredibly important to note here that there is no provision under the intestacy rules to provide for the following: –
- Long term partner, if you are not married or in a civil partnership.
This is the biggest hazard with the testacy rules, and the one that often people are not aware of. If you are in a long-term relationship, no matter how long you have been together, lived together or if they are financially reliant on you, your partner would not receive anything under the rules of intestacy.
- Children who are not your biological or adopted children.
Step – children can not inherit under the intestacy rules, if they have not been adopted by you legally.
In addition, In the event that there are no surviving blood-relatives to inherit, the estate becomes part of a process, known as ‘bona vacantia’.
This means your estate is claimed by the Crown and while the Crown can grant shares from the estate to those who can prove they have an entitlement; it is under no obligation to do so once bona vacantia has been declared.
Can the intestacy rules be challenged?
The simple answer to this is no.
However, a person who believes they should have inherited, had a will been prepared, can make a claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975. A claim must be made within 6 months from the date of the grant of probate.
The other alternative is for the person who believes they should have inherited can ask the people who did inherit to apply for a deed of variation or a deed of family arrangement within two years of your death.
This is an agreement between all the people who would have inherited under the intestacy rules to share or distribute the assets in a different way, perhaps to include people who wouldn’t have inherited under the intestacy rules, or to change the proportions.
These scenarios can be timely and very expensive and would require legal advice.
Also, most importantly, these routes do not guarantee that the person who did not inherit will now inherit.
In order to ensure your estate does not fall into the rules of intestacy is simple, ensure that you have a valid will in place before your die, this can be done at any point of your life once you reach the age of 18.
We know discussing what you want to happen to your estate after your death isn’t always an easy conversation to have with family and friends, however it is important. These conversations now and ensuring you have a will in place before your death with ensure your estate is divided in line with your wishes and will give you and your family peace of mind.
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