Making a will has many advantages. However, many people die without leaving a valid will and this then poses two big questions:
• “Who is entitled to deal with the estate?” and
• “Who will inherit?”
When someone dies without making a Will, it isn’t always clear who can legally deal with their estate, or who will inherit. The people most important to them, which may include you, might not inherit any of the estate. When someone dies without a Will, it is known as being “Intestate”.
What does “Intestate” mean?
An Intestate estate happens if a deceased person did not make a Will. It can also happen if the person made a Will but didn’t keep it up to date (for example, all the beneficiaries of old Will might already have died). In these circumstances, the deceased person’s estate, which includes their home, money and personal belongings etc., is distributed in accordance with the Rules of Intestacy, a strict set of rules which may not be in accordance with their wishes.
Who is entitled to deal with the estate?
The Rules of Intestacy set out who is entitled to deal with an Intestate estate. In general, so long as there is at least one surviving relative, the order of entitlement is as follows:
• Surviving spouse or civil partner
• Surviving spouse or civil partner and children (if the estate is above £250,000)
• Father or mother
• Brothers and sisters (or their children)
• Uncles and aunts (or their children)
Who can inherit?
The Rules of Intestacy also list who will inherit where a person died Intestate. Certain family members are entitled to inherit, but the list is based on rules set out almost 100 years ago, so, despite some recent revisions, it might not always feel like a good fit for modern family arrangements such as “blended families”. For example, it makes no provision for co-habitees who are not married or in a civil partnership, or for step-children. Similarly, the rules make no provision for friends, pets, or charities
When a married person dies, the Rules of Intestacy make different provision depending on the size of the person’s estate and whether they have any children, grandchildren, or great-grandchildren.
If the person who dies is married or in a civil partnership
If the deceased doesn’t have any living children, grandchildren, or great-grandchildren, the surviving spouse or civil partner will inherit the entire estate, regardless of its value.
However, if the person who has died has children, grandchildren, or great-grandchildren as well as a surviving spouse or civil partner, this is where things can begin to get more complex and the size of the estate can determine whether the spouse or civil partner must share the estate with other family members.
Where there are children, grandchildren, or great-grandchildren, the surviving spouse or civil partner is entitled to:
• All of the deceased’s personal chattels, often known as “personal effects” – this includes things like their car, house contents (but not the house itself), garden furniture, pets, jewellery
• The first £250,000 plus half of the remainder of the estate
The children, grandchildren, or great-grandchildren take the other half of the remainder of the estate.
As an example, let’s look at a situation where the estate is worth £300,000 and the deceased leaves a surviving spouse and four children. Here, the surviving spouse will take the first £250,000 and the remainder of the estate (£50,000) will be split into two halves, one half for the spouse and the other half for the children. In this example the spouse therefore receives £275,000 (ie. £250,000 plus £25,000 from the remainder) and the children share the other £25,000. If any child dies before the deceased person, then their children will inherit the share that they would otherwise have received.
As the spouse or civil partner is entitled to the first £250,000 in the estate, it follows that he or she will inherit everything if the overall value of the estate does not exceed £250,000.
If the person who dies has no spouse or civil partner but has children
In these circumstances, the children will inherit the estate once they reach 18 years of age. The estate will be divided equally between all the children, even if some of them didn’t get on well with their deceased parent. Any child who dies before their deceased parent is still effectively entitled to their share of the estate, but it goes to their own children.
For example, John is a widower with four children, Adam, Bee, Poppy and Jackson. Bee dies before John, but leaves three children of her own. When John dies, his estate would be divided equally between his four children, so they would each take one quarter. However, as Bee died before John, her share goes equally between her three children (as they are John’s grandchildren). The same thing would happen if any of Bee’s children had died before John, ie. that child’s share would go to his/her own children (John’s great-grandchildren) and so on down the line.
If the person who dies has no spouse, civil partner, children, or other descendants
Where this situation arises, the deceased person’s parents inherit the estate if they are still living. If not, then entitlement to inherit follows the same pattern as entitlement to deal with the estate, as set out at earlier in this blog.
What if there are no surviving relatives?
If there are no surviving blood relatives, the estate will pass to the Crown. This is known as a ‘bona vacantia’ estate. The Government Legal Department (formerly known as The Treasury Solicitor’s Department) is responsible for dealing with these estates.
Who cannot inherit?
The following have no right to receive benefit from a deceased person’s estate unless they are named in a Will:
• Unmarried partners including LGBTQ+ partners
• Relations by marriage (eg. “in-laws”)
• Friends (not even best friends)
• Valued employees
Other important points to note
• If you are divorced, or your civil partnership has been legally dissolved, or you are simply co-habiting, you won’t be able to inherit from your deceased partner’s estate.
• Nevertheless, for the purposes of the Rules of Intestacy, married couples and civil partners who are separated but not yet formally divorced are still classed as married or in a civil partnership until their marriage or partnership is legally dissolved. In the meantime, a separated spouse or civil partner will inherit under the Rules of Intestacy.
• Children adopted by you are treated in the same way as your biological children and have exactly the same rights and entitlements as your biological children. However, in relation to estate matters, a child whom you have given out for adoption is no longer classed as your child and therefore has no rights under the Rules of Intestacy.
• Assets owned jointly with another person will pass automatically “by survivorship” to the surviving joint owner. The value of any jointly owned property is not included when calculating the surviving spouse’s, or civil partner’s, share of the estate.
Making a Will
To avoid being Intestate, and for your own peace of mind, it is important to make a Will (and keep it up to date) to ensure that your estate goes to the people you want to benefit from it.
How can I find out more information?
If you would like to discuss any of the above or to find out more information, please contact us on 0800 614 722 to speak to one of our specialist legal professionals, or visit our local office.