Intestacy Rules25 Mar 2019 | Jan Atkinson
What are the rules of intestacy?
It is estimated that between half and two-thirds of the adult population have not made a Will. Where someone dies without a Will, the Intestacy Rules apply. This can result in your estate passing to people you would not have chosen and can cause significant financial hardship for your loved ones.
What is intestacy?
Intestacy occurs when a person dies without having made a valid will. In England and Wales, if you die intestate, your estate (property, money and possessions) will be divided among your closest relatives according to a specific set of guidelines.
The laws of intestacy are set out in the Administration of Estates Act 1925 and subsequent legislation set out in The Inheritance and Trustees Powers Act 2014. The rules are complex, but broadly speaking they provide as follows.
If you are married or in a civil partnership without children or grandchildren
The spouse or civil partner will inherit the whole of the estate.
If you are married or in a civil partnership with children
- Your spouse or civil partner will inherit your personal belongings, the first £270,000 of the estate and half of the rest of the estate.
- This means that where the estate is less than £270,000 the spouse or civil partner will inherit everything.
- The rest is split equally between the children.
If you do not have a surviving spouse or civil partner
- Your estate will pass equally to your children.
- If a child has already died, his or her children will inherit their share of the estate.
If you have no surviving spouse or civil partner or children
- Your estate will pass to surviving parents
- If the parents are dead, the estate will pass to other relatives in strict order, starting with siblings and then half-siblings, grandparents and aunts and uncles.
What if there are no surviving relatives?
In cases where the deceased’s relatives cannot be traced, your estate will ultimately pass to the Crown. This is known as bona vacantia. A few years ago, Prince Charles hit the headlines for using £3.3m of unclaimed legacies to fund his own charities, including funding for a private school in Scotland and an architecture group.
Who cannot inherit under intestacy rules?
The intestacy rules do not make provisions for:
- Unmarried partners (whether opposite-sex or same-sex)
- Ex-spouses, where you have officially divorced or dissolved the civil partnership
- Relations by marriage
This can cause real problems where people live together but are not married, or for blended families, as partners and stepchildren will not automatically inherit anything on their death.
Why should you make a will?
Making a Will is the only way to ensure that your property and possessions go to the people you want them to go to. It is particularly important to make a will if:
- You and your partner are not married or in a civil partnership
- You have young children
- You have stepchildren or other non-traditional family relationships
- You want to leave something to someone who is not closely related to you, such as a friend or charity
- Your personal circumstances are complex, for example, you own property abroad or you are in a second relationship.
Making a will gives you peace of mind that your loved ones will be provided for after your death and can save them a great deal of stress and financial hardship. It also avoids any misunderstanding or disputes about what you want to happen to your belongings after you die.
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Jan Atkinson Partner
New intestacy rules 2020
Up until 2014 the statutory amount due to the surviving spouse was £250,000. The new rules that came into force on 6th February 2020 increased the amount to £270,000.
The Inheritance and Trustees’ Powers Act 2014
The main changes made in The Inheritance and Trustees’ Powers Act 2014 in respect of Intestacy were as follows:
Spouse/civil partner no issue
Previously, where a person died intestate leaving a surviving spouse/civil partner but no children or other descendants, the deceased’s assets were shared between the deceased’s spouse and also the deceased’s parents and/or siblings.
The Inheritance and Trustees’ Powers Act 2014 ensured that on intestacy all of the deceased’s assets now pass to the surviving spouse absolutely in this situation.
Spouse/civil partner and children or other descendants
The Inheritance and Trustees’ Powers Act 2014 simplified the sharing of assets on intestacy where the deceased was survived by a spouse and children or other descendants.
The surviving spouse now takes the personal chattels and a statutory legacy of £250,000 plus half of any balance of the estate outright. The surviving children or other descendants take the remaining half on statutory trusts.
This enhances the interests of the spouse which was previously limited to a life interest in half of the residuary estate left after the statutory legacy.
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