Dying without a Will – Intestacy
What does intestacy mean?
Intestacy means that a person has passed away without leaving a valid UK Will. The term Intestacy can be used when the deceased never wrote a Will, no Will can be found or they wrote a Will but at the time of death, it was rendered invalid.
What is the difference between testate and intestate succession?
When a person dies without a will, they are said to have died “intestate.” An Intestate estate is the property and assets of a deceased person who left no Will. As there is no valid Will there are no directions from the deceased about who should settle the estate, how it should be settled or who should be receiving an inheritance. Intestate succession means that the law dictates who has the rights to administer and inherit the estate.
When a person dies leaving a valid will, they are said to die “testate”. A testate estate is the property and assets of a deceased person who left a valid Will. A testate estate must be settled and distributed according to the wishes in the Will. A testator (the writer of the Will) can choose whoever they want as their beneficiaries and what they want their beneficiaries to inherit. They can also choose who they want to administer their estate and settle their affairs. A testator is not limited to only choosing blood relatives or spouses/civil partners as their executors and beneficiaries.
What happens if you die intestate?
When a person dies without a Will their estate still needs to be administered, collected and distributed. If probate is required, probate works almost the same when there is no Will as when there is. The major difference being before any work can take place on an intestate estate it needs to be established 1) who has the legal authority to administer the estate 2) who is entitled to inherit from the estate. If the deceased hasn’t chosen their executor or beneficiaries in a valid Will, “the rules of intestacy” dictate who has the legal authority to handle the estate and who is legally entitled to inherit.
What are the rules of intestacy?
The rules of intestacy are a set of laws used to establish who is the next of kin when someone dies intestate. These define who is in charge of the deceased’s financial affairs, who is eligible to inherit and even how much they will get. The Rules of Intestacy set out the order in which the next of kin is entitled to inherit under the laws provided by the State.
The next of kin order of priority goes as follows:
1) Spouse/civil partner
Where there is a surviving spouse/civil partner and children, the spouse/civil partner keeps all of the personal possessions, all the assets up to £270,000 (including property) and half of the remaining estate. The children have the right to an equal share of the other half of the remaining estate. If any of the deceased’s children are minors, under 18, their share of the estate is held in trust until they reach 18.
It is important to note that assets owned in joint names are not distributed under the deceased’s estate. Assets owned in joint names will pass to the surviving owner and are unaffected by the Rules of Intestacy.
2) Children – or their direct descendants
3) Parents
4) Full siblings – or their direct descendants (nieces and nephews)
5) Half-siblings – or their direct descendants (half nieces and nephews)
6) Grandparents
7) Aunts & Uncles – or their direct descendants (cousins)
8) Half Aunts & Uncles – or their direct descendants (half cousins)
9) The crown – If no next of kin exist/or can be found the estate will fall to the crown.
Who has a right to inherit under the rules of intestacy?
In order to establish who will inherit by intestate succession, you must start at 1 and work your way through the order of priority until you have found a beneficiary (or beneficiaries). For example, if there is no spouse then the next entitled would-be children. If there is no children, grandchildren, or great-grandchildren, you would look for the deceased’s parents and so on.
Once a beneficiary has been identified you do not need to keep working through the levels of priority. However, you do need to find any other potential beneficiaries with the same level of priority. For example, if there is a Full sibling you would need to locate any other full siblings or eliminate the possibility that there are any. You would not need to locate half-siblings because the full sibling has a higher priority.
If you’re not sure how to apply the rules of intestacy you can use the Governments online Intestacy checker.
Who is the executor of an intestate estate?
An executor can only be named in a Will and therefore an instate estate cannot have an executor. The “executor” of an intestate estate is known as the administrator. The rules of intestacy dictate that the closest next of kin have the legal authority to be the administer of the estate. However, if they do not want to act it will pass to the next closest and continue to pass until a next of kin agrees to act in the role.
If a next of kin decides not to accept the role of administrator this does not automatically remove their entitlement to inherit. An elderly spouse may feel incapable of administering the estate but is reliant on the inheritance. Therefore, they can decline to act as administrator but not decline their inheritance. This will pass the legal authority to administer the estate to their children but still entitle them to inherit as the spouse.
Who is not entitled to inherit under the rules of intestacy?
Anyone who is not a spouse, civil partner or blood-related to the deceased does not have a right to inherit under intestacy rules. The Rules of Intestacy do not always accommodate modern-day family structure or reflect what the deceased’s wishes would have been. The intestacy rules do not take into account the following people:
- Partners that are unmarried or not in a civil partnership – It is important to note that there is no provision for cohabiting or “common law” partners.
- Family members through by marriage (e.g brother-in-law, step-siblings etc)
- Friends or Carers
A person who does not have the right to inherit under intestacy rules but was financially dependent on the deceased may be able to make a claim under the Inheritance (Provision for The Family & Dependents) Act 1975.
Final Duties offer fixed fee Wills provided by our team of IPW Will writers. Call now on 0800 7318722 to speak with an advisor about writing your Will.
What is Partial intestacy?
Partial intestacy is when the deceased has left a Will, but it has not dealt with all of the assets in their estate. This usually occurs with DIY or homemade Wills where the testator hasn’t used the correct legal terminology didn’t have the professional knowledge to be able to account for a particular scenario or has been too vague and has not made their intentions clear. In this circumstance, assets that have been accounted for will be handled according to the terms of the Will and the rules of intestacy will be applied to the assets that have not been accounted for.
Who inherits property if there is no Will?
Who inherits property when there is no Will is dependent on the ownership of the property. Property held in joint names will automatically pass over to the surviving owner. Property held in the deceased’s sole name or as tenants in common will pass to the next of kin according to the Rules of Intestacy.
Can the Rules of Intestacy be changed?
Beneficiaries identified by the Rules of Intestacy can redirect their inheritance, or part of it, through the use of a Deed of Variation. An Intestacy Deed of Variation is a legal document that allows the administrators and beneficiaries to vary how the estate will be distributed according to the rules of intestacy. The conditions to using a Deed of Variation are that the beneficiaries who will be affected by the change must agree, be over 18 years old and have mental capacity. An example of when a Deed of Variation could be used to vary the rules of Intestacy would be children redirecting their share of a parent’s estate to the surviving spouse.
Final Duties offers fixed fee probate and administration services including Deeds of Variation. Call now on 0800 7318722 to speak with an advisor.
Do you have to go through probate if there is no Will?
The need for probate is not dictated by whether or not there is a Will, but by the type of assets in the deceased’s estate and their value. A property or large amounts of cash held with banks will always require probate. Probate protects the deceased’s assets from being collected or handled by someone who does not have the legal authority to do so.
Where there is a Will the person handling the estate, the executor, has already been named by the deceased. A grant of probate confirms the Will is valid and the executor’s legal authority to administer the estate.
Where there is no Will there may be multiple people with a right to administer. To avoid confusion and the potential of releasing a significant amount of assets to the wrong person an institution will request letters of Administration for a lower value of assets than if there was a Will. Letters of administration are the intestate equivalent to a grant of probate. Where there is no Will, the court is looking for proof of who is next of kin rather than verifying the will is a valid legal document. This prevents someone who is not entitled to the estate from applying to be an administrator and accessing assets they have no right to. For that reason, intestate estates are often more likely to require probate.
