What is intestacy? A brief look at intestacy and the intestacy rules in England and Wales
[This article, ‘What is intestacy?’ was last updated in January 2021]
Intestacy is the legal term used when a person dies without having made a will. The intestacy rules specify who is entitled to their 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” which as from 6 February 2020 is up to £270,000. 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, i.e. 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.
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.
How to challenge the intestacy rules
If you feel the intestacy rules do not make adequate financial provision for you and you wish to contest them then call our free legal helpline on 0333 888 0404 or send us an email at [email protected]
The article ‘What is intestacy?’ was last updated in January 2021 and reflects the increase in the statutory legacy, but if you need up to date advice on the intestacy rules, or you would like to make an inheritance claim on the basis that the intestacy rules (or a will) failed to make adequate financial provision for you, then give our free legal helpline a call.