An individual will die intestate if any of the following occur: –
- They did not make a will
- They have made an invalid will
- A valid will was destroyed with the intention of revoking it
- A person entered into a marriage or civil partnership after a will was made. Unless a will clearly states that the testator is making the will with the intention of marrying or entering a civil partnership, any existing will is automatically revoked.
It is common for wills to be difficult to locate. Often the deceased will not have left clear instructions about the location of the will, or which legal firm has it in their possession. For this reason, it’s important not to assume that the deceased has not made a will, so a thorough search must take place before the deceased can be said to have died intestate.
This will include conducting an extensive search of the deceased’s property for a Will. Any solicitors they have instructed previously should be contacted, as well as any local solicitors asking them to check their files.
If this doesn’t locate the will, then you should consider placing a notice in the Law Society Gazette requesting information about the deceased’s will. You can also make an application to search the National Will Register.
If none of the above results in a will being located then it’s safe to presume that the deceased died intestate.
There are two principal forms of intestacy:
This occurs when a person has died without leaving a valid will and the whole estate has to be dealt with.
This occurs when the deceased has left a valid will however, it only covers some of the estate but fails to dispose of the whole estate. The Intestacy Rules will apply to the part of the estate not contained in the will.
The executors will hold any property that has not been disposed of by the will on trust for any person who is entitled to it under the Intestacy Rules.
It must be noted that the Intestacy Rules can only apply to property which the deceased could have left by a will.
It is important to bear in mind once the value of the estate has been obtained after the total amount of debts have been calculated, it is imperative to calculate how much (if any) inheritance tax is due.
If the value of the estate after debts is taken is over £325,000.00, then there will be Inheritance Tax to pay. This tax is due within six months from when the person has died and if it not there will be interest charged on the amount.
When someone dies intestate in England and Wales, strict inheritance laws, known as the rules of intestacy, are applied.
Unfortunately, these do not take account of the variety of modern family relationships. No provision is made in the rules for unmarried or unregistered partners. In effect, this means that someone who has lived with their partner for decades may not automatically inherit property and other assets that were held in the sole name of the deceased.
However, it is possible for a partner in that position to make a valid inheritance claim. The family of the deceased is also able to legally vary the distribution of intestacy to make sure that the partner is provided for. This does depend on the partner having a good relationship with the deceased’s immediate family.
In some circumstances, families can and do legally claim assets through the intestacy laws even if that leaves the deceased with nothing. This can be highly distressing and disruptive and underlines the importance of making a will, particularly if you’re living with someone to whom you’re not married, or if there’s someone you would like to inherit part of your estate who wouldn’t through the intestacy laws.
Intestacy rules also only recognise natural or adopted children when it comes to inheritance. This means that if you have step-children, they would not enjoy an automatic right to inherit your estate. They may be able to make a valid claim but this can be an involved and lengthy process.
How intestacy rules determine the distribution of an estate
The order in which an estate is split under the Intestacy Rules depends on the value of the estate and the surviving family members of the deceased.
An estate is split under the Intestacy Rules with family members who were closest to the deceased. A spouse or civil partner has priority over every other family member but they may have to share the residuary estate depending upon the specific circumstances of the deceased’s estate.
If the deceased is divorced or their civil partnership has legally ended, the ex-partner will be unable to inherit under the rules of intestacy. However, partners that have informally separated may still apply.
If the deceased was cohabiting at the time of death but they were not married or in a civil partnership their partner is unable to inherit under the Intestacy Rules.
If there are children who have survived the person and the estate is valued at more than £250,000, they are entitled to inherit. For the avoidance of any doubt, adopted children and step-children have the same rights to inherit under the rules of intestacy.
If a partner (through marriage or civil partnership) has survived they will inherit the following:
- The first £250,000.00 of the estate; and
- All personal possessions of the deceased (whatever their value); and
- Half of the remaining estate.
If there are no surviving children the partner will inherit all personal belongings and the whole estate with interest from the date of death.
In order for Grandchildren and great-grandchildren of the deceased to inherit, their parent or grandparent must have died and they can only inherit in equal amounts the share their parent or grandparent would have inherited if they were still alive.
If there are other relatives still alive such as parents or siblings they may inherit under the Intestacy Rules but it depends on the following situation:
- If there is a surviving civil or married partner;
- If there are surviving children; and
- The amount of the estate.
The order of other people who can inherit under the rules is as follows:
- Aunts and Uncles; and
- Half aunts and uncles.
A cousin can inherit if the aunt or uncle who would have inherited has died before the intestate person.
Certain people are unable to inherit from the estate however, they are able to apply to the court for some financial provision from the estate. These include:
- Unmarried partners
- Lesbian or gay partners not in a civil partnership
- Relations only by marriage
Financial provision can be awarded by either maintenance as an ongoing payment or a lump sum. This is decided by the court based on the specific circumstances of the deceased’s estate.
If no relatives have survived the intestate person the estate will pass directly to the Crown.
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