Intestacy Rules: Questions and Answers
What does ‘Intestacy’ mean?
Intestacy is the legal term used when a person dies without having made a will. The Rules of Intestacy designate who is entitled to the estate.
My late husband did not make a will. He has children with his ex-girlfriend and we have children of our own. He had some investments and a collection of antiques. Who will inherit his estate?
As his wife you will be entitled to your husband’s personal effects, including the antiques. Under the Intestacy Rules you will also receive the “Statutory Legacy” of up to £250,000. This is free of tax but it includes interest. You will receive a ‘life interest’ in one half of the residue of your husband’s estate and the four children will all be entitled to an equal share of the other half of the residue.
What is a ‘life interest’?
A Life Interest is a legacy where the recipient is entitled to have the benefit of the asset during their lifetime but on their death it passes to someone else . You can have a life interest in money (when you can use the income but can’t touch the capital) or property (when you can live in the property or rent it out but can’t sell it and keep the proceeds).
We are not married but have lived together for 10 years and have young children. Do we need wills?
Yes, you should definitely both make a will. The Rules of Intestacy do not provide for cohabiting partners. So, if your partner dies before you then his estate will go to his next of kin, ie the children and you wont be entitled to a penny. If you both make a will you can decide who to leave your estate to and also appoint guardians for your children.
The Intestacy Rules fail to make adequate financial provision for me. Is there anything I can do?
Possibly. If you are a spouse, a cohabitee, a child or someone who was supported by the deceased then you may be able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975. But don’t delay, you only have 6 months from the Grant to make a claim.
My wife has died and did not make a will. We owned our house as beneficial joint tenants. Will I get the house?
Yes. The property will pass directly to you under the rules of survivorship. Joint property is not included in the estate for distribution either under a will or under the Intestacy Rules.
My husband and I do not have children. However, my husband’s father is still alive. Who would inherit my husband’s estate if he died without making a will?
You would be entitled to a Statutory Legacy of £450,000, plus interest. The residue of your husband’s estate will be shared equally between yourself and your father-in-law.
Why is a will so important?
It provides certainty as to who should inherit your estate and can also help limit the Inheritance Tax liability payable on your death. This means more of your assets go to your loved ones and less to the Taxman.
Comments
Mothers estate
My mother recently passed away without leaving a will. When she was ill i didnt feel right bringing up the subject of making a will and her partner (not married) told her there would be no need as her estate was small - he had based this on his knowledge from what happened when his mother died but he was an only child. The problem i have now is that i am the only child out of me and my brothers who cared when my our mother died and now i am facing having to share her estate with them, it is less than £6,000 (after the funeral which i organised) but i feel this is so wrong. My one brother who we haven't spoken to for years had to be informed via facebook that she was dying and he still did not want to know,the other brother was aware she had cancer and only visited her the day before she died and has always been a bad person - stealing, jobless with a drink problem. There is also the fact that they both inherited when our cheating father died and i did not and have never contested as i did not speak to him. I know my mum would not have wanted either of them to get a penny as they did not care about her but what if anything can i do? i hope someone can help,thanks.
Where there is no will to
Where there is no will to determine who is to benefit under a deceased's estate then the rules under the intestacy laws apply. The law sets out who is entitled to the deceased's assets after payment of debts and expenses including the funeral account (essentially the deceased's net assets). Basically the next of kin will benefit and in your situation since your father has predeceased your mother and she has not remarried then her net assets are to be shared between her children who are over 18 years old or be held on trust until they reach 18 years of age.
If you feel that “reasonable financial provision” has not been made then, in theory, you can make a claim under the Inheritance (Provision for Family & Dependants) Act 1975 as a “child of the deceased”. For all practical purposes though, given the size of the Estate (less than £6,000), I would not encourage you down that route. Firstly, the legal costs of the claim would vastly exceed the value of the claim and you would have to fund it privately (legal aid would not be granted for such a small estate); secondly, it is extremely unlikely that the court would agree to a redistribution of the estate given its comparatively small size.
I can only recommend therefore that maybe you should speak to your siblings to see if they would agree to a voluntary redistribution.
I am one of three children,
I am one of three children, our father passed away on 23 January 2008 very unexpectedly. My mother had died intestate [13 years ago]. After [her] funeral I received a phone call from my father's solicitors saying that everything would pass to my father. I had no knowledge of the intestacy law at the time until a friend of the family told me about it, I immediately engaged my own solicitor who has been trying to expose what my father did. My father never had a valuation done at the time of my mother's death but was able to swear an oath saying that the property was not worth anywhere near the figure given for the intestate law to be applied. The whole property was then assented to him and him alone. We were kept in the dark on purpose. He has [now] left his estate in 50% share to his ex-girlfriend and his three grandchildren. We are left with nothing and my father's solicitor is the sole executer of his estate. I find it an absolute disgrace that three children have been left out of an inheritance of a family home which had belonged to the family since the 1800s and that my father, who hated us, has been allowed to do this. If this property sells as it stnds to day it is worth approx £250k but if it should have building/planning permission on it £1million is it approx value. he only changed his will after he made my brother and sister decide if they were on his side or with me in challenging his behaviour when my mother died. He was having the affair with the woman who stands to inherit from my family's property when my mother was dying of cancer , but had left her for another woman 6 months before he died. I have lived under a cloud for 13 years and yet no one would challenge the solicitor who acted for my father during the death of my mother, who helped to steal the family home from us and at the time my brother was 14 years old , still a minor, and yet he was not told or offerred representation because no one told us he was entitled to it. Even when challenged my father and his solicitor denied any wrong doing and now that very same solicitor is the executor of his will.
administration of Mother's intestate estate
This is obviously a very distressing story and i can't help feel sympathy for you.
Practically speaking i'm not sure there is much that can be done here. You already have solicitors acting for you who will have had access to all the facts and be aware of the full background to this story. i don't think we can offer any other suggestions.
Presumably if the manner in which your mother's estate was handled had been in any way improper your solicitors would have advised proceeding against the solicitor involved.
Possible Claims
Thank you for your enquiry. It is a difficult position that you find yourself in but the possible options open to you would be as follows:-
1. Bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975 against your father’s estate as a child of the deceased who did not receive reasonable financial provision from his estate. It can be difficult to succeed with such a claim where you are an adult child as the Courts will view you as financially independent and therefore be reluctant to place a legal obligation upon the testator to benefit you (even if there is a moral obligation to do so). Additional factors such as financial dependency, mental or physical disability or promises by the testator to benefit you can help with such a claim. However, you would need to start this claim in the Courts within 6 months of the date of Grant of Probate. If this date has already passed then you would need to act promptly in commencing proceedings belatedly.
2. Bring a probate claim to challenge the validity of your father’s will if you believe there is sufficient evidence to convince a Court that your father lacked testamentary capacity or was unduly influenced when he signed the will. This is a difficult claim to establish as you start from a position where the Court believe the testator did have capacity and was not unduly influenced and therefore you need to overcome that presumption with sufficient evidence to the contrary to succeed.
3. A belated claim under the 1975 Act against your mother’s estate. This appears to be significantly out of time and would therefore be difficult to establish. However, if you or your siblings could show you were not advised of the ability to bring this claim until now you may be able to persuade the Court to allow you to bring it out of time. The problem is that the estate was distributed some time ago and the Court may not want to interfere in the distribution after such a period of time.
4. A professional negligence claim against any Solicitors who advised you around the time of your mother’s death and who failed to advise of, particularly your minor brother’s, right to bring a claim under the 1975 Act.
5. A professional negligence claim against the Solicitors who acted for your father in the administration of your mother’s estate as a disappointed beneficiary who did not receive your entitlement under the intestacy rules due to his negligent affirmation of the value of the estate. Again this would be a difficult claim to establish as you would need to obtain expert evidence as to the value of the property 13 years ago in order to show that the solicitor was negligent in submitting the value of the estate to the Probate Registry.
As you can see the options open to you are difficult given the period of time that has passed. However, if you would like to discuss any of them further, together with the funding options open to you in pursuing them, then please do not hesitate to contact us on 01392 423000.
my husband and i have not
my husband and i have not made a will . will everything automatically go to him or me whichever is the case.we have considerable funds
Husband and wife - no will
In a word "No".
the surviving spouse will get the statutory legacy only the value of which varies deopending on whether or not you have children.
If you have substantial assets then there is a real risk that on the first death the survivor may not get everything and this is a clear case where it would be foolish not to have a will prepared. This is something that slee balckwell would be very happy to help you with.
Having discovered substantial
Having discovered substantial evidence of undue influence after my Uncle died, I have now been advised that even if my late Uncles final Will of 20 th Nov' 08 is declared invalid, their solicitor is very likely to declare that he died intestate, even though 4 previous Wills exist.
I'm informed that their previous marriage Will ( Oct' 02 ) automatically revokes all previous Wills. This includes one of Sept 02, in which I was removed as a 50 percent beneficiary. ( Subjected to obvious coercion in a post operative condition )
Can you please advise if their any way around this particular problem, assuming it is indeed correct, as it would appear to be a very obvious way for people to avoid the consequences of undue influence. (ie: They made a final Will only months before he died for no meaningful reason, to defend the previous marriage Will, in the event of a challenge to his estate )
Thank you.
Revocation of an earlier will.
A will is automatically revoked by a subsequent marriage unless the will is made "in contemplation" of the marriage celebrated.ie if a testaror makes a will in comnmtemplation of marriage to Mary then his later marriage to Mary does not revoke the will but if he marries Joan the will is revoked.
Unfortunately for you a will once revoked is not -re activated unless that revocation was unintentional.
It depends upon whether your
It depends upon whether your Gran left a Will or not. If she had a Will leaving everything to your brother then you would need to contest the Will on specific grounds, for example lack of testamentary capacity or undue influence.
If, as appears to be the case, she did not leave a Will then under the intestacy provisions if she had no surviving spouse or children then her estate would pass to her grandchildren. The grandchildren would receive an equal share of what their parent would have received. So, for example, if she had 2 children, one with 2 children and the other with 3 children, then the first two would receive a quarter of her estate and the latter 3 grandchildren would receive a 1/3 share of the 1/2 their parent would have been entitled to.
So in answer to your question, it appears you would be entitled to a share of the estate as you and your brother would be in an equal position. How much you should receive will depend upon whether your Gran had other children as well.
As the amount in dispute is relatively small you would need to bring any claim in person (i.e. without a solicitor) within the Small Claims Court (anything below £5,000 falls within the small claims court- as your share would appear to do). For a helpful guide on how to bring small claims proceedings I would direct you to the following website:-
www.doyourselfjustice.co.uk
I hope this has been helpful
my gran left over 6800 my
my gran left over 6800 my brother is claming all the money he says that i am not intitled to anything