Everything you need to know about the intestacy rules
Hundreds of thousands of people die each year without writing a will. According to a recent poll by Barnardo’s, around 60% of UK adults have not written one -- that’s around 30 million people.
Even where a will is made, it often turns out to be invalid. This might be because the deceased failed to comply with the strict requirements of the Wills Act 1837; or lacked the requisite mental capacity; or was unduly influenced by someone else; or the will may have been automatically revoked upon divorce or the end of a civil partnership.
In such cases, a person is said to have died intestate.
Intestacy can be total or partial. Total intestacy occurs if there is no valid will. Partial intestacy occurs if there is a valid will, but it does not say how all the deceased’s assets should be distributed. In either case, all or part of the deceased’s estate must be distributed according to the intestacy rules.
The below diagram summarises how an estate is distributed among the surviving relatives of a person who has died intestate:
(1) “Personal chattels” is a legal term used to describe someone’s personal belongings, such as cars, jewellery, clothes, and furniture.
(2) The “statutory legacy” is the amount a surviving spouse (or civil partner) may inherit before the rest of the deceased’s estate is distributed. For example, if the deceased was married, had one child, and left an estate valued at £500,000, the surviving spouse would receive £375,000 (i.e., a statutory legacy of £250,000 plus a life interest in £125,000 -- constituting half of the rest of the estate); the surviving child would receive £125,000.
(3) Certain assets pass independently of the intestacy rules. For example, jointly owned property (e.g., held in joint tenancy) may pass automatically to the surviving joint owner(s). Consult a solicitor for more information.
So why bother writing a will?
1. You get to decide who inherits what
A will allows you to make gifts of money or specific items to individuals or charities of your choosing. If you fail to write one, everything you own will be distributed in accordance with the intestacy rules. And, depending on your circumstances, the entirety of your estate could escheat to the Crown.
Moreover, the intestacy rules do not recognise unmarried partners or stepchildren. As a result, even if you’ve lived together for many years, your cohabitant or stepchild may be left with nothing if you do not write a will.
2. Your loved ones can bypass intestacy and access your estate faster
Intestacy is time-consuming and stressful. It can take many months, sometimes years, to gain access to assets after a person dies. In the meantime, bills can pile up for those financially dependent on you.
3. Avoid unnecessary disagreements and tension among your loved ones
The families of famous stars like Barry White, Bob Marley and Jimi Hendrix squabbled for years because they died intestate; writing a will means your loved ones are less likely to fall out over who gets what.
4. Appoint a legal guardian for your children
Making a will allows you to choose the person you believe will offer the best care for your children if you’re not around.
5. Minimise inheritance tax
A will allows you to plan the distribution of your estate in order to minimise inheritance tax. Read ‘Ways to avoid inheritance tax’ for more information.
6. Set up trusts
A will allows you to set up trusts to make provisions for children or other vulnerable persons, or simply protect your assets in some way after you die. Visit FindLaw’s trusts centre to learn more.
7. Leave instructions
A will allows you to leave instructions about how you want your body dealt with after you die.
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