According to a recent survey, 68% of UK adults do not have a will. When someone dies without a will they are considered as passing away intestate. Contrary to what many believe, in these circumstances an estate cannot just be divided how the family wishes or how the family feels the deceased would have wanted – instead the intestacy rules apply.
The intestacy rules are strict and do not work hand in hand with different family dynamics – remarriages, step children and divorces can all result in more complicated family arrangements.
Who inherits from an estate under the intestacy rules depends upon the nearest living family members. If someone passes away leaving a spouse or civil partner and children, the first £250,000 passes to the spouse absolutely. The remaining assets are split 50/50 between the surviving spouse or civil partner and the children.
The first £250,000 is called the statutory legacy and from 6 February 2020 this will increase to £270,000.
If someone died leaving a spouse but no children, then the spouse will take the whole estate. Similarly, if someone died leaving no spouse but children, the whole estate would be shared equally between the children. The definition of children under the intestacy rules does not extend to step children - only biological or adopted children of the deceased - which could be extremely problematic for a family with multiple marriages. A co-habiting partner of the deceased, irrelevant of the number of years of cohabitation and the family set up, will not be entitled to anything under the intestacy rules either. They would have to pursue a claim under the Inheritance (Provision for Family & Dependants) Act 1975 which can be very expensive, time consuming and does not guarantee any results.
If a child of the deceased had predeceased, that child’s share would be split between any children they had (i.e. the deceased’s grandchildren).
If there are no spouses or children, the order of entitlement would be as follows:
- Parents of the deceased
- Siblings of the full blood (or nieces and nephews if siblings predeceased)
- Siblings of the half blood (or nieces and nephews of the half blood if siblings predeceased)
- Aunts and uncles (or cousins if uncles or aunts have predeceased)
- Aunts and uncles of the half blood (or half-cousins if uncles or aunts have predeceased).
When this order is followed, it is not uncommon for a more distant relative, that perhaps you have lost touch with, to inherit over those closest to the deceased. There are no provisions for friends or charities irrelevant of the effect that such people or charities could have had on someone’s life.
For larger estates, the intestacy rules often do not fall in the most inheritance tax efficient way and can lead to a larger liability to inheritance tax than if the deceased had made a will.
When someone dies intestate, you usually need to get a grant of letters of administration to administer the estate. There is also the practical issue of who is entitled to apply for the grant. The order of entitlement to act as administrator is very similar to the order of beneficial entitlement above. This may result in someone who knew very little, if anything, about the deceased’s financial affairs tackling the complicated job of administering the estate.