What does it mean to die ‘intestate’?
If a person dies ‘intestate’, it means they have died without making a valid Will. When this happens ‘intestacy rules’ come into effect that dictate who is entitled to inherit from the estate and what they are entitled to receive.
It is also possible to die partially intestate – this happens where the deceased has made a valid Will, but the Will fails to properly distribute all their assets. In this situation, the intestacy rules will only apply to any assets which do not pass under the Will.
What are the intestacy rules?
The intestacy rules set out a strict order as to how the estate must be distributed and will depend on who the surviving family members of the deceased are. Whilst anything held in joint names will automatically pass to the surviving joint owner, anything held in the deceased’s sole name will pass as follows:
- Spouse/civil partner alone
Where the deceased has no children, the deceased’s surviving spouse or civil partner will be entitled to receive the whole of the estate.
- Spouse/civil partner and children
Where the deceased leaves a surviving spouse and children, the spouse (or civil partner) is entitled to receive:
- All of the deceased’s personal chattels (personal items such as furniture, jewellery etc);
- The first £270,000 (£322,000 from 26th July) of the estate – i.e., the Statutory Legacy
- Half of the remaining estate
The other half of the remaining estate will be divided equally between the deceased’s surviving children. If the deceased has any children who predeceased, that deceased child’s children will inherit their share.
If the estate is worth less than the fixed Statutory Legacy amount, the surviving spouse or civil partner will inherit the whole of the estate.
- No spouse/civil partner or children
Where the deceased has no surviving spouse/civil partner, and has never had any children, the deceased’s family will inherit the estate in the following order of priority:
- Parents;
- Siblings of the whole blood* (i.e. who share the same parents);
- Siblings of the half blood* (i.e. who share only one parent);
- Grandparents;
- Uncles and Aunts of the whole blood*;
- Uncles and Aunts of the whole blood*.
*if pre-deceased their surviving children will inherit
Where the deceased has no surviving family from the above categories, their estate will pass to the Crown – yes, the Crown!
What if I am not married to my partner?
Unfortunately, there is no provision in the intestacy rules for long-term couples who have not married or entered into a civil partnership.
They also fail to account for stepchildren or foster children unless they have been legally adopted by their step-parent or care-giver.
What about common-law marriage?
There is a common misconception that if a couple have lived together for many years that they will enjoy the same legal rights and protections in respect of inheritance as a couple who have married or entered into a civil partnership. Although this may be the case in some countries, the law in England and Wales does not recognise the concept of a common-law marriage and unmarried couples can often be left in a difficult financial situation if they unexpectedly lose their partner and they had not made a Will.
It may be possible for a long-term cohabiting partner to bring a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. The Act allows certain people, who are either in a specific relationship to the deceased, or were financially dependent upon them, to bring a claim against the estate on the grounds that reasonable financial provision has not been made for them. However, there is no guarantee that a claim would be successful, and it can end up being a very costly process.
Conclusion
Although the announced increase to the Statutory Legacy is a welcome change, we have seen that the intestacy rules are not able to provide for every situation and may produce an undesirable result for your estate.
By making a Will, you can ensure that your wishes are accurately reflected and that your estate passes to your chosen beneficiaries.
We would always suggest that you seek legal advice when making a Will.
If you would like advice on making a Will or assistance with dealing with a loved one’s estate, speak to one of our private client solicitors today and find out how we can help. Contact us on 03456 465 465 or email enquiries@rotherabray.co.uk.
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers
