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It has been said many times, but everyone should have a Will over the age of 18.  The reason for this, is to make your wishes clear and to try to stop any confusion and problems for your family and friends left behind.

But what happens if I do not leave a Will?

In England we have the Intestacy Rules which is legislation that states strictly where your estate is to go.  Unfortunately, these rules are archaic and do not take in to consideration changing family circumstances, and therefore your estate could go where you would not want it to go!

What are the intestacy rules?

These are rules that provide where your estate is to pass.  Only married and legal civil partners and other close relatives can inherit under these rules.

Under the Intestacy rules there is no such thing as “Common Law Spouse”, so if you are unmarried, you will not inherit under these rules no matter how long you have been together.

So, who does inherit?

Legally married or civil partners inherit under the rules of intestacy, if they were married at the time of death.  If you were divorced, then you would not inherit, as your marriage or civil partnership has been legally ended.

If you were separated and not legally divorced, then you would still inherit under the rules, as the rules do not distinguish “separation”.

Cohabiting partners (wrongly known as “common-law” partners) that were not legally married or in a legally identified civil partnership cannot inherit under the rules.

However, a married partner or civil partner can be limited to what they can inherit, if they have surviving children, grandchildren or great-grandchildren.

For example, if the estate is valued at more than £322,000 then the partner can only inherit the following;

• All the personal possessions of the deceased
• The first £322,000 of the estate, and
• Half of the remaining estate over this amount.

 What about jointly owned property?

The exception to the Intestacy rules is when some couples jointly own property.  Jointly owned property can be owned in two different ways, and this can have an effect.

Beneficial Joint Tenants

This is when a couple own a property 100% between them, and there are no distinct shares.  This means that the property will automatically pass by survivorship and the intestacy rules have no involvement in the property, as it bypasses the rules.

Tenants In Common

This is where a couple own distinct shares of their property and it does not pass by survivorship.  This is caught by the intestacy rules and will form part of the value of the estate and will pass to the nearest relatives.

This ownership can cause problems for cohabiting couples for example;

Alex and Sam are a cohabiting couple, they never married.  They own their property as Tenants in Common in equal shares.  Alex dies without making a Will and the estate passes to the children of Alex.  Alex’s children have taken against Sam and decide that they want the money from the property.  Sam either has to buy them out, which they cannot afford to do, so they are going to have to sell the house and cannot afford to buy a place of their own, effectively becoming homeless.

Other exceptions to Intestacy rules

Some couples may have a joint bank or building society account. These again automatically pass by survivorship, which means that the survivor will become the sole owner of the account and receive all the money.

Who are the Close relatives that can inherit?

Children

Children of the deceased will inherit if there is no surviving married or civil partner, or if the estate is valued over £322,000.

If there is no surviving married or civil partner then the children will inherit the whole estate and if there is more than one child, it will be divided equally between them.  The oldest does not get more than the youngest, they are treated equally.

If there is a surviving spouse or civil partner, then the children will only inherit one half of the estate that is valued over £322,000 and again this is split equally between the children if there is more than one.

All children of the parent who has died intestate will inherit equally from the estate. This also applies where a parent has children from different relationships, they are all treated equally under the intestacy rules.  This means that if you have had no contact with a child all their life, they will still be entitled to an equal share of the inheritance.

It is worth noting that a child whose parents were not married or in a civil partnership can still inherit from the estate, and they can also inherit from grandparents and great-grandparents as they are considered a child of the family.

Also adopted children that have been legally adopted have the right to inherit under intestacy.  However, stepchildren do not have any right to inherit, unless they have been legally adopted by the deceased.

And children must be over 18 years of age to get control of the inheritance.  If they are under age then the inheritance will be managed by trustees on their behalf until they attain 18 years of age.

Grandchildren and Great-Grandchildren

A grandchild or great-grandchild can inherit under the intestacy rules, if their parent has died before the deceased.  In these circumstances the grandchild or great-grandchildren will inherit what their parent would have been entitled to had they survived.  And if there is more than one grandchild then again, they will take in equal shares between them.

Other Close Relatives

Potentially under the intestacy rules parents, brothers, sisters, nieces and nephews may inherit the estate of the decease if there is no married or civil partner or children of the deceased.  There is a strict order of priority, and we would advise you to seek legal advice when needing to decide where the estate is to pass.

In worst case scenario, if the deceased has no one, the rules state that the estate will pass to the Crown – yes that is the Royal Family – currently King Charles!  This is known as “bona-vacantia”

Who Cannot Inherit Under the Intestacy Rules?

Unfortunately, the following people have no legal right to inherit under the intestacy rules, and is why it is strongly recommended that you make a Will to ensure that these people can inherit if you wanted them to;

• Unmarried partners
• Lesbian or Gay partners not in a civil partnership or legally married
• Relations by marriage – e.g. in-laws
• Close Friends
• Carers or support workers

What could I do, if the intestacy rules don’t let me inherit?

If you can’t inherit under the intestacy rules, you might be able to apply to the Court under The Inheritance (Provision for Family and Dependents) Act 1975, but this is not guaranteed and can be very costly and a very long process.

What should I do?

Everyone should make a Will to ensure that the intestacy rules do not unfairly treat your loved ones and family.

Leave your family and friends with certainty that they will be ok, should the worst happen to you.

Arrange an appointment to make a Will to ensure that the worst does not happen to your family and loved ones.

Ginette McCaffery Solicitor

Article Dated – 04/07/2024