Intestacy

How will I know if there is a will?

After death a search for a will should be made at the deceased’s home and enquiries should be made with family members and solicitors.

A notice can also be placed in the Law Society Gazette asking for details of any will that might have been made.  The deceased might have lodged a will with the local district probate registry and a search can be done to check for this.  The probate registry maintain a national electronic register of the wills that have been registered with them.

What if there is no will?

If no valid will exists then the intestacy rules will apply.

The intestacy rules govern how a person’s possessions are distributed after death if they have not left any invalid will or if they have revoked an existing will.

The intestacy rules will also apply to any part of an estate that is not disposed of by a valid will.  If a gift under a will fails for any reason and there is not a gift of the residue of the estate then that gift will also be dealt with under the intestacy rules.

A will might also unintentionally have been revoked if someone marries or enters into a civil partnership unless the will states that it is made in contemplation of marriage or civil partnership with a named person.

Whether a will is invalid or revoked can be a difficult question and, if these questions arise, specialist legal advice should be taken.

The effect of the intestacy rules changed for deaths occurring on or after 1 October 2014.  The information on this page only considers the effect of the rules from that date.

Who can apply for Letters of Administration?

When someone dies intestate it should be determined who can apply for letters of administration.  This provides authority to administer the estate which is known as probate.

It is usually unlawful to distribute the estate without obtaining letters of administration although there are exceptions to this.

Letters of administration will not always be required to administer and estate but they will be needed if there is a bank account or property that does not pass to a spouse or civil partner by survivorship.

There is an order of priority of who can apply for letters of administration and these are:-

  1. Spouse or civil partner
  2. Adult child
  3. adult grandchild
  4. parent
  5. brother/sister
  6. nephew/niece
  7. another relative

Unmarried partners or same-sex partners not in a civil partnership will not usually be able to apply for letters of administration.

Usually letters of administration are granted within a month of application but this can take much longer if the estate is complicated.

Guidance on how to apply for probate and the relevant fees can be found at:

HMRC Probate and Inheritance Tax Helpline on 0300 123 1072.  The Welsh language helpline is 0845 302 1489.

The forms required are located at www.gov.uk

What does the administrator need to do?

An Administrator takes responsibility for dealing with the estate.  This will include:

  1. investigating the finances and assets of the deceased;
  1. providing the death certificate to anyone that holds the deceased’s assets (for example, banks).
  1. If appropriate, opening a bank account to hold the estate funds.
  1. Investigating and paying estate debts using estate funds.
  1. Investigating whether any debts are owed to the estate or any payments from life assurance policies and collecting them.
  1. Calculating any taxes due from the estate (for example, inheritance tax).
  1. Distributing the estate in accordance with the intestacy rules
  1. sharing out the estate, as set out in the will or according to the rules of intestacy.

If the estates liabilities for debts and taxes are more than the value of the estate you should take legal advice.

How do the Intestacy Rules work and who do they apply to?

Spouses / Civil Partners

The rules will only apply to assets that were capable of being left under a will.  For example, the benefit of policies of insurance and money held on trust such as discretionary death in service benefits will be determined by the terms of the relevant policies or trust deeds.

The intestacy rules apply to spouses and civil partners identically provided that they survive the deceased for 28 days.  We will refer only to spouses but the information set out on this website applies equally to civil partners.

Co-habitees have no entitlement under the rules buy they may have a claim under the Inheritance (provision for family and dependants) Act 1975.

The rules will not apply after a marriage / civil partnership is dissolved or if there is a judicial separation.

Issue

Under the rules ‘issue’ of the deceased may have an entitlement.  ‘Issue’ includes:

  1. direct descendants;
  2. adopted children;
  3. illegitimate children;
  4. children who are conceived but not yet born at time of death.

Issue’ does not include step-children.

Unlawful Killing

If someone would benefit from a death under the intestacy rules they cannot benefit if they unlawfully caused that person’s death.  If, for example, a wife murders her husband, she cannot benefit from his death under the intestacy rules although their children may.

The Intestacy Rules applied.  Who gets what?

The estate value affects who will be entitled to distribution from the estate.

Survivorship

Before the intestacy rules are applied specific jointly held assets jointly may pass to the survivor.  Usually, this would be assets such as jointly held bank accounts and houses owned as joint tenants.

Powers to deal with estate assets

The personal representatives will hold the estate assets on trust for the beneficiaries to distribute after settling estate liabilities (such as debts and funeral expenses)

If the beneficiaries are in agreement the personal representative can transfer assets from the estate to meet the beneficiaries’ entitlements instead of selling the assets.  Land can be transferred to anyone who is entitled to it whether they agree this or not.

Personal property should not be sold unless this is necessary to pay estate liabilities.

If there is a surviving spouse and issue:

The spouse receives:

  1. all personal chattels absolutely; and
  2. the first £250,000 plus accrued gross interest from death until payment

The rest of the estate is then split in two.  The spouse then takes a life interest in one half and the other half goes to the issue on the statutory trusts.

If there is a surviving spouse, no issue but surviving parents, siblings or nieces/nephews then:-

The spouse receives:

  1. all personal chattels absolutely; and
  2. the first £450,000 plus accrued gross interest from death until payment

The rest of the estate is then split in two.  The spouse then takes half and the other half goes to the parents equally (if alive). If the parents are not alive then to siblings equally.  If one or more siblings are not alive their share goes to their children equally.

If a deceased’s parents are not married or in a civil partnership there is an assumption that the deceased is not survived by his father unless this is shown to be the case.  This is so that the administrator is not under a duty to trace the father if their whereabouts is not known.  The administrators must still make enquiries based on the father’s details on the deceased’s birth certificate (if any).

If there is a surviving spouse but no other close family then:

The spouse receives everything.

If there are no blood relations then:

The estate will pass as what is known as ‘bona vacantia’.  This means that it will pass to the Crown or, depending on where the deceased lived to the Duchy of Lancaster or the Duke of Cornwall.   This would not affect the ability of dependants to bring claims under the Inheritance (Provision for Family and Dependants) Act 1975.

Entitlement of children aged under 18

Beneficiaries only acquire their interest in an estate when they reach 18 or marry or enter into a civil partnership before 18.

If a beneficiary dies before reaching 18 or without marrying or entering into a civil partnership before  18 then their interest will be redistributed either to their children or, if they have none, then in accordance with the intestacy rules.

What if a relative died before the intestate person?

 If the relative who would have acquired an interest (but for the death) has children they will acquire their parent’s share equally provided that they reach 18 or marry or enter into a civil partnership before 18

Spouse’s Rights.

Although detailed consideration of the rights of spouses is beyond the scope of this website a spouse does have rights to

  1. redeem a life interest in part of the estate which may arise (for example where the estate is valued at over £250,000 and the deceased had children).
  1. A right to appropriate the matrimonial home. This right must be exercised within 12 months of the grant of probate by written notice to the administrator(s) of the estate.

Does an administrator need legal advice?

This depends on the complexity of the estate and the abilities of the individual administrator.  As a broad rule of thumb there are certain things that will make an estate more complicated to administer including:-

  1. The deceased had children under the age of 18.
  2. The deceased left assets held in trusts or owned property abroad.
  3. Claims from dependants for provision from the estate.

Legal fees for seeking advice and assistance with these issues is usually be paid out of the estate.

Links:

A checklist of what to do when someone dies can be found at www.gov.uk.

HM Courts and Tribunals Service Publication:   How to obtain probate – A guide for people acting without a solicitor. www.justice.gov.uk.

www.crusebereavementcare.org.uk.