What does intestate mean for you?

Wills, Trusts & Estates | 9th April 2018

October 2014 saw the biggest changes in probate law’s history come into effect. While the overhaul meant no real difference to those with minimal assets, for the partners of those who died without making a will and who have more assets, it meant significant change.

In the cases where a Will is involved, the deceased’s Executors have the legal power to distribute their estate according to the deceased’s instructions. However, in the case of intestacy, the landscape is vastly more complicated.

Who can Inherit?

Under the rules of Intestacy, only certain individuals can automatically inherit the deceased’s estate. These include:

  • Husbands, wives and civil partners
  • Children
  • Parents.

However, the automatic inheritance only takes place if the deceased’s estate totals less than £250,000. If the estate is more than that sum, the rules change.

Applying for a Grant of Probate

Without a Will and in cases where the deceased was unmarried, the law dictates that there is no legal representative in place to deal with his or her affairs. However, individuals can apply to become recognised as the deceased’s Personal Representative, by applying to the Probate Registry. If successful, the individual will be appointed as the Personal Representative.

As part of the process, the applicant must inform the Inland Revenue whether Inheritance Tax is owed. In addition, the applicant must also prove that they have some entitlement to becoming a Personal Representative, before a Grant of Probate is made. As a result, this can be a lengthy process, taking anywhere from a minimum of three weeks, to several months.

Intestacy for Married Couples

Where the deceased was married but has died without leaving a Will, the surviving spouse will inherit the entire estate where there are no children. While this is beneficial to the spouse, it eliminates any claims from other relatives, including parents. Should the couple have children, the surviving spouse will automatically inherit the first £250,000 of the estate and have the legal right to half of whatever remains. The unclaimed half is then inherited by the children, although they cannot access it until they are 18 years old.

Intestacy for Unmarried Couples

For an unmarried couple with no children, the outlook is significantly bleaker for the surviving partner. In instances such as these, the surviving party has no entitlement to the deceased’s estate, with it being immediately inherited by blood relatives, such as parents, brothers and sisters and nieces and nephews.

The term ‘common-law partner’ has no bearing under probate law. Should the deceased have had a child or children from a previous relationship, the inheritance goes automatically to them – again, leaving the surviving partner with no claim to the estate, whatsoever.

‘Common-law’ partnerships are not recognised under probate law, irrespective of how long the couple may have lived together. However, spouses in civil partnerships assume the same rights as those who are married.

Bona Vacantia

In the event that there are no surviving blood-relatives to inherit, the estate becomes part of a process, known as ‘bona vacantia’. This means that the deceased’s estate is claimed by the Crown. While the Crown can grant shares from the estate to those who can prove they have an entitlement, it is under no obligation to do so once bona vacantia has been declared.

Discussing and deciding what will happen to your money, personal effects and assets isn’t a conversation that many couples tend to enjoy. However, to avoid the unpleasant sides of intestacy, it’s a conversation worth having. The best advice is to seek the services of a professional probate solicitor, who will be able to inform you of the best courses of action available to you.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Emily Wiggins

Partner, Trusts & Estates

Emily specialises in inheritance tax planning, the administration of estates, trusts, wills and lasting powers of attorney. She is a member of the ...