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Rules of intestacy: What happens when you die without a Will

Posted by Kings Court Trust | Jun 9, 2021 3:44:42 PM

When someone dies without a Will, they are said to have died “intestate” and their estate must be distributed following the rules of intestacy. The intestacy rules are dictated by law in the country where the Deceased was domiciled. Unfortunately, understanding who inherits under the rules of intestacy is not always as straightforward as it may seem.

Many people do not understand the importance of creating a Will to ensure their estate is not left to the rules of intestacy. People often assume that their closest loved ones will inherit even when they die without a Will, but that is not always the case. With changing family dynamics and the rise in blended and cohabiting families, creating a Will is now even more important than ever to ensure your estate is distributed as you wish.

Kings Court Trust’s ‘Changing family structures: The Will writing industry in 2018’ research paper revealed that many of those most at risk still do not have a Will. In fact, the research found that only:

  • 45% of UK adults have a Will
  • One in three (33%) adults with children in the household have written a Will
  • 30% of adults who are living as married have a Will

The number of cohabiting couples and parents without a Will is particularly worrying as it is more probable that their wishes will not be followed if they were to die intestate. 

 

The rules of intestacy

Under the rules of intestacy in England and Wales (as an example), if the Deceased has a living husband, wife or civil partner and the estate (in the sole name of the Deceased) is not worth more than £270,000, the spouse or civil partner is entitled to everything. Joint assets pass by survivorship unless specific arrangements over those joint assets have been made.

When the estate is worth more than £270,000 and the person who died has children, the children will receive half of the remaining estate over the £270,000 threshold and the spouse or civil partner is entitled to the other half. For example, if an estate is worth £470,000 (in the sole name of the Deceased), the spouse or civil partner would inherit £370,000 (£270,000 plus £100,000 from half of the remaining estate) and any children would inherit £100,000 split equally between them.

No matter the value of the estate, the spouse or civil partner inherits all the Deceased’s personal belongings when there is no Will.

If the person who died did not have a spouse or civil partner but did have children, the estate would be equally split between the children – or their issue (the deceased’s grandchildren) if they have pre-deceased.

In England and Wales, the order of priority after children is:

  • Living parents
  • Full-blood siblings
  • Half-blood siblings
  • Grandparents
  • Aunts/uncles
  • Half-blood aunts/uncles

In Scotland, great aunts/uncles are entitled after half-blood aunts/uncles. Scotland also has a different legal system where Prior Rights and Legal Rights also apply. These rights are in place to ensure the surviving spouse/civil partner and children are not disinherited from an estate, but similar to estates in England and Wales, assets may not go to where immediate family think it should.

If a relative has passed away, their descendants are entitled to inherit on their behalf. For example, a cousin may inherit if the aunt/uncle has already passed away or a niece/nephew would inherit if a sibling had pre-deceased.

If the Deceased had no surviving relatives, the estate would pass to the Crown (or the relevant Duchy of Lancaster or Cornwall if appropriate).

The UK government website has a handy tool in which they ask a series of questions to help you identify who is entitled to inherit when someone dies without making a Will.

Rules of intestacy infographic

 

The importance of writing a Will

Leaving behind a well-written and valid Will can make the estate administration process clearer and more straightforward. It can often prevent unnecessary stress for loved ones at an already difficult time. If a valid and up-to-date Will has been left, there is a clear outline of how the estate will be distributed, identifying beneficiaries and exactly what they will be inheriting from the estate.

 

Administering an intestate estate

When someone dies without a Will, it ultimately makes the estate administration process more complicated. Our recent blog shares some case studies where we’ve been faced with complex intestacies that could have been avoided by leaving a Will. Click here to read the blog.

If you are presented with what appears to be an intestate estate, it’s important to thoroughly search for the Will to ensure the Deceased didn’t leave one. You should check at their home, at the Deceased’s bank and contact local Solicitors and Will Writers in their area to see if they hold a Will. You can also try using a Will search service, such as Certainty: The National Will Register, to see if a Will has been registered.

Once you are confident that a Will does not exist, you can proceed to administer the estate in line with the intestacy rules. As the Administrator (typically the next of kin) personally takes on the legal and financial responsibility of administering the estate, it’s crucial to ensure that the estate is correctly distributed following the rules of intestacy when no valid Will has been left. Family relationships are not always as they seem, so we always recommend that family trees are professionally verified to ensure that the estate is distributed correctly to the rightful heirs.

At Kings Court Trust, we’re experts in estate administration and offer a variety of award-winning probate and estate administration services to help families at the difficult time of losing a loved one. Whether there is a Will or not, our Client Services Team are on hand to offer free, practical and impartial advice about the next steps following a bereavement. They can help you determine the next steps and offer a no-obligation quote for our professional help. Fill in the form below or call 0300 303 9000 or email ClientServicesTeam@kctrust.co.uk.

Topics: Estate Administration, Intestacy, Will, Wills