If there is no Will

How is it decided whom should benefit in the absence of a Will?

If a person dies without a valid Will in place there are strict statutory rules-‘the intestacy rules’-which determine how the estate of the person who has died must be distributed. These rules do not take account of the deceased person’s wishes or individual circumstances.

The intestacy rules are complicated and broadly speaking provide for the estate to pass to a surviving spouse or registered Civil Partner and nearest blood relatives in a particular order of priority. Many people do not realise that there are limits on the amount a surviving spouse or registered Civil Partner is entitled to receive from the estate. If the value of the estate exceeds these limits then nearest blood relatives in a strict order of priority will also receive a benefit out of the excess amount. A cohabiting partner has no automatic entitlement to a share of the deceased partner’s estate under the intestacy rules.

Who is responsible for sorting out the estate where there is no Will?

The person(s) who are entitled to benefit from the estate under the intestacy rules will generally be authorised to take out the Grant of Representation. This gives them the legal authority to deal with collecting in the deceased's assets, settling any liabilities and distributing the net estate in accordance with the intestacy rules.

Is everything the deceased owned dealt with in the same way?

For the purposes of applying the intestacy rules, the 'estate' is generally limited to assets in the sole name of the deceased and to the deceased's specific share of assets held as 'tenants in common'.

Any share the deceased may have had in assets held jointly with one or more others as ‘joint tenants’ (for example a couple’s joint bank account) will generally pass automatically to the surviving co-owner(s) outside of the intestacy rules. The value of the deceased’s share in such assets is not therefore counted towards the entitlement of the surviving spouse or registered Civil Partner under the intestacy rules.

Property may be held jointly by one or more persons either as ‘joint tenants’ or as ‘tenants in common’. It is therefore very important to establish how the property is held as this will determine whether the deceased’s share passes under the rules of intestacy or automatically to the surviving co-owner(s).

What if there is someone who feels they should benefit but who doesn’t qualify under the intestacy rules?

An individual who is not entitled to benefit under the rules of intestacy or who is unhappy with the sum he or she stands to receive may still be able to make a claim on the deceased’s estate or seek a greater share than the intestacy rules allow. This applies particularly to a surviving spouse or long term co-habiting partner and to anyone who was financially dependent on the deceased prior to his death. Anyone who believes they have such a claim should seek expert advice as soon as possible as there are time limits for taking formal action after which the potential claim may be lost.

It is also possible to vary the distribution of the estate under the intestacy rules if those who stand to benefit under those rules agree to do so. If an appropriate Deed of Variation is drawn up within two years of the date of death it is possible to rearrange the estate with backdated effect for Inheritance and/or Capital Gains tax purposes. In some cases there could be scope for significant Inheritance Tax savings.

N.B. This is intended as a brief guide to the rules of intestacy and is no substitute for tailored advice on the particular facts. If you are unsure as to your legal rights or responsibilities in connection with a particular matter then you should take specific advice from a legal professional. Please contact us and we can discuss how we can help you.