Dealing with the estate of a deceased loved one can be a drawn-out and challenging process even when there is a legally valid Will.
When someone dies without a valid Will in place, there are strict inheritance laws, referred to as the ‘Rules of Intestacy’, which apply in England and Wales. These rules set an order of precedence which determine who is entitled to what and who is allowed to administer the Estate (the executor).
If someone makes a will but it turns out to be legally invalid, it is the rules of intestacy that decide how the estate will be shared out. This is not necessarily going to be the way you would have planned.
The Rules of Intestacy place relatives of the deceased in a strict order of priority as follows:
- married partner / civil partner of the deceased
- Other relative
The Rules of Intestacy don’t allow for modern or more complicated family relationships – for example they:
- Make no provision for unmarried / unregistered partners. This means that if no will is made, the surviving partner will not automatically inherit the property and belongings owned in the sole name of the deceased. However, a partner can make an inheritance claim instead, or the family can choose to provide for the partner.
- Only recognise natural and adopted children, not step children. However, in many cases step children will often have a valid claim.
If you are considering Estate Planning Solutions and a Will writing service but are unsure where to start, our advisors are here to offer free advice. Contact us today for a no obligation consultation.
Intestacy In Scotland
The rules on intestacy in Scotland are different to those in England and Wales. Surviving spouses or civil partners are entitled to ‘prior rights’ which include a share in the family home up to a value of £473,000. This is assuming it is located in Scotland and the partner was a resident in it at the time of death. It also includes furniture up to the value of £29,000 and other moveable assets worth up to £50,000 (if you have children) or £89,000 (without children). Whatever is left will then be divided up according to ‘legal rights’, which are shared between your spouse and any children, or other immediate family. If you have no spouse, your estate is shared among your children. If you have neither spouse nor children, your estate is distributed among your immediate family according to rules set out in the Succession (Scotland) Act.
When someone dies intestate, matters often become protracted. For the Administrator of the estate, there are a number of unfamiliar tasks that will occur. It is vital that the process is completed accurately as the administrator will legally be personally liable for errors or omissions.
Being granted Letters of Administration is one of the first things that must happen in order to gain the legal authority to deal with the deceased’s financial and other affairs and this alone can be daunting to anyone outside the legal profession. Not only will you have to demonstrate that you have the necessary authority to apply, the administrator will need to:
- Have the Estate Valued.
- Identify and value all other assets and belongings
- Submit an application for the Grant of Letters of Administration
- Place advertisements to creditors
- Pay any liabilities
- Submit an Inheritance Tax return to HMRC
- Locate all beneficiaries
- Prepare Accounts
- Obtain any necessary Indemnities
- Distribute assets
Dealing with an intestacy is a daunting prospect with countless pitfalls and the potential for personal financial risk. The most valuable piece of advice we can give you to avoid your possessions being divided in a way that opposes your dishes is to write a will and take control of the situation for yourself.
We will carry out a bespoke will writing service for you based on your current and future needs and those of your family. Speak to one of our friendly specialist advisors today for free, no-obligation advice.
Married Partners, Civil Partners And Intestacy
Married or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. If you are divorced or if your civil partnership has legally ended, you cannot inherit under the rules of intestacy.
Partners who separated informally can still inherit under the rules of intestacy. Cohabiting partners who were neither married nor in a civil partnership can’t inherit under the rules of intestacy.
When there are surviving children, grandchildren or great grandchildren of the person who died with an estate valued at more than £270,000, the partner will inherit:
- The personal property and belongings of the person who has died
- the first £270,000 of the estate, and
- Half the remaining estate.
If there are no surviving children, grandchildren or great-grandchildren, the partner will inherit:
- All the personal property and belongings of the deceased,
- The whole of the estate with interest from the date of death.
There are two different ways of jointly owning a home:
- beneficial joint tenancies and
- tenancies in common.
If the partners were beneficial joint tenants, the surviving partner will automatically inherit the other partner’s share of the property. If the partners are tenants in common, the surviving partner will not automatically inherit the other person’s share.
Couples may also have joint bank accounts; if one dies, the other partner will automatically inherit the whole of the money.
Property and money that the surviving partner inherits does not count as part of the estate of the person who has died when it is being valued for the intestacy rules.
Children – Children of the intestate person will inherit everything if there is no surviving married or civil partner. If there is a surviving partner, they will inherit only if the estate is worth more than a certain amount. (see above)
If there is a surviving partner, children only inherit from the estate if it is valued at over £270,000. Multiple children will inherit in equal shares:
A child whose parents are not married or have no civil partnership can inherit from the estate of a parents, grandparents or great-grandparents who have died intestate.
Adopted children have rights to inherit under the rules of intestacy too.
Children do not always receive their inheritance immediately. They receive it when they:
- reach the age of 18, or
- marry or form a civil partnership under this age.
Until which, trustees manage the inheritance on their behalf.
Other Close Relatives
Parents, brothers and sisters and nieces and nephews of the intestate person can inherit under the rules of intestacy but this will depend on a number of circumstances:
- whether there is a surviving married or civil partner
- whether there are children, grandchildren or great grandchildren.
- whether the parent directly related to the person who has died is also dead
- the value of the estate.
Other relatives may inherit if the person who died intestate had no surviving married partner or civil partner, children, grandchildren, great grand-children, parents, brothers, sisters, nephews or nieces. The order of priority amongst these people is as follows:-
- uncles and aunts. A cousin can inherit instead if the uncle or aunt who would have inherited died before the intestate person
- half-uncles and half-aunts. A half-cousin can inherit instead if the half-uncle or half-aunt who would have inherited died before the intestate person.
Who Does Not Inherit?
Who Cannot Inherit
If someone dies without leaving a will the following people do not have a claim on the deceased’s estate:
- Unmarried partners
- Lesbian or gay partners not in a civil partnership
- Relations by marriage
- Close friends
In certain cases an application can be made to the court for financial provisions.
When There Are No Relatives
If there are no surviving relatives, the estate passes to the Crown. The Crown can make grants from the estate but does not have to agree to them.
If someone dies without leaving a will it is possible to rearrange the way property is shared out providing two years have not passed since the death. This is “making a deed of family arrangement” or “variation”. All who would inherit under the rules of intestacy must agree.
If they do agree, the property can be shared out in a particular way so that people who do not inherit under the intestacy rules can still inherit part of the estate. The amount that people get is different to what the rules of intestacy would decide, but everyone involved must be in agreement about this.
Write A Will
Conducting affairs surrounding the estate of a person who dies intestate can pose many expensive problems. To prevent situations such as these it is wise to consider using a will writing service and employing other estate planning solutions to protect your assets.