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Intestacy, and how it might impact upon your surviving family
What is ‘Intestacy’?
A person is deemed to be ‘intestate’ when they have died without making a valid Will.
‘Intestacy’ is the state or condition of dying without making a valid Will.
What is ‘partial intestacy’?
Partial intestacy is where the deceased person made a valid Will, but the Will failed to distribute the whole of the deceased person’s estate. This can occur for various reasons, but usually it is due to the poor drafting of the deceased’s Will.
What are the risks of dying intestate?
Where a person dies intestate then their estate is distributed in accordance with the ‘Rules of Intestacy’. These rules are fixed, and set out in Law. They often have unwanted and profound consequences for the surviving family – as detailed below.
Where a person dies partially intestate then the part of their estate that is not included within the Will is distributed in accordance with the ‘Rules of Intestacy’. Where partial intestacy occurs the cost of sorting out the estate is increased significantly.
What are the rules of intestacy?
The ‘rules of intestacy’ are a set of rules that stipulate exactly how an estate is to be distributed where the deceased person failed to make a valid Will.
The ‘rules of intestacy’ set out the maximum amount a surviving spouse can receive, then distributes the remaining estate between children, then grandchildren, then parents, then auntie’s and uncles. And so the list continues until the ultimate beneficiary (if there is nobody else) is the Crown.
The rules are a ‘one size fits all’ that actually rarely meets any individual’s needs. In many cases the rules actually create hardship for a surviving family. For example:
- A surviving spouse: A surviving wife or husband is only allowed to inherit a set amount. Where the deceased’s estate exceeds this limit then statutory trusts may be created. In some cases a surviving spouse is made homeless as a consequence.
- Stepchildren: Stepchildren are not recognised in the Rules of Intestacy. So if you wanted a stepchild to inherit a part of your estate then you must make a Will.
- Cohabiting partners: The Rules of Intestacy do not recognise a cohabiting partner. As a consequence a cohabiting partner can find themselves homeless after the death of their partner -
because the deceased’s estate goes to the deceased’s children (if they have any) or to their surviving parents – but not to the surviving partner!
Other often unwanted outcomes of the application of the Rules of Intestacy are:
- Equal Class Distribution: Where the deceased’s estate is distributed to one or more persons (e.g. the deceased’s children) then the estate is distributed equally between them. For most people this is okay, but occasionally parents wish one child to benefit more than the others: this is this though is not possible under the Rules of Intestacy.
- Minors Inherit at Age 18: Most parents wish their children to inherit at age 21. Under the Rules of Intestacy a child inherits at age 18. Evidence shows that many 18 year olds then fritter away their inheritance by the time they attain age 20.
- No specific gifts are allowed: The whole estate is distributed en-
masse under the Rules of Intestacy. Many people however wish to make specific gifts: this is only possible by making a valid Will. - Next of kin acts as administrator: Where a Will is made the deceased can appoint someone they trust as their executor to sort out their estate. Where no Will made the duty of sorting out the estate rests on the deceased’s next of kin. Most people prefer to appoint someone they trust to sort out their affairs, and this may not be their next of kin.
- Additional Fees: It is more expensive to sort out an estate where the deceased died intestate than a comparable estate where the deceased made a Will.
How can I avoid intestacy?
By making a valid Will - that disposes of all of your estate, and can be located at the time of your death.
Exact figures are unknown but undoubtedly people do make valid Wills that cannot be located at the time of their death. These people are deemed to have died intestate.
Intestacy:
- increases estate administration costs
- children inherit at age 18
- the Law dictates who benefits from your lifetime work: not you.
- often has unwanted consequences for a surviving family.
Did you know …
In 2011 1901 people died on roads in the UK. Other statistics suggest that 900 of those will have died intestate.
But ask yourself … could you be next years statistic? And if so, what would be the consequences for your family?
It is never too early to make a Will, but too often it is too late.
Statutory Limits Increase
In August 2008 the following was announced by the Ministry of Justice:-
"Spouses and civil partners to receive more when partner dies without leaving a Will.
Married couples and civil partners whose spouse or civil partner dies without leaving a Will are to benefit from an increase in the statutory legacy under proposals published by the Government today.”
The Government has acted after concerns that the levels of the statutory legacy, currently set at £125,000 and £200,000, were too low.
Justice Minister Bridget Prentice said:
"This increase will give extra protection to married couples and civil partners whose spouse or civil partner dies without making a Will. But it also highlights how important it is for both men and women to make arrangements for their loved ones in the event of their deaths."
"Married couples and civil partners should not assume that when their spouse or civil partner dies, they will automatically be entitled to everything. It is up to individuals to make sure that their wishes are respected by making a Will."
"My message to people is, don't leave it to chance. Make sure your loved ones are properly provided for by leaving a Will."
From the 1 February 2009 the new levels of the statutory legacy will increase to £250,000 and £450,000."
Did you know …
Marriage Revokes a Will
If you have married since you made your Will then your Will is automatically revoked (unless there is a contrary statement within your Will.) As a consequence if you have married after making your Will you will be deemed to have died intestate, and your estate will therefore be distributed in accordance with the Rules of Intestacy.
You should therefore review your existing Will prior to getting married or entering a civil partnership to ensure such a clause is included.