Despite the importance of writing a will, research by Royal London found 54% of adults in the UK do not have a will. Understanding what the legal consequences are if you suffer a bereavement of a loved one will help provide you with peace of mind during what may already be a very difficult and emotional time of your life.
The rules of intestacy
When an individual dies they may have provided for the disposition of their property on death by leaving a valid will.
If an individual does not dispose of such property by will, it will pass on his death according to the rules of intestacy. The person who dies without leaving a will is called the intestate person.
Under the rules of intestacy, the deceased’s inheritance will pass to their closest living blood relative in a specific order.
The rules of intestacy set out different kinds of property which may pass independently of the terms of any will or intestacy rules.
- Joint property: if a property is held by more than one person as joint tenants, on the death of one joint tenant the interest of the deceased will pass by survivorship to the surviving joint tenants.
- Nominated property: statutory provisions enable individuals to ‘nominate’ what is to happen to certain types of funds after death. This provision applies to deposits not exceeding £5,000 in trustee savings banks and societies.
- Insurance policies: if a person takes out a life assurance policy, the benefit of that policy will belong to that person. This means on death, the police matures, and the insurance company will pay the proceeds to the representative who will distribute the money according to the terms of the will/intestacy rules.
If you are married or in a civil partnership and your partner dies without a will, if you owned anything jointly e.g., bank accounts etc, you will automatically be entitled to this, and this will not form part of the deceased’s estate.
Similarly, if you owned a property as joint tenant, on death your partners share will pass to you automatically under the rights of survivorship.
The effect of intestacy rules
Under the intestacy rules, a spouse is the person to whom the deceased was married at his death regardless of if they were living together. Same sex couples have the same rights as opposite sex couples, and civil partners are treated in the same way as spouses.
Where the intestate is survived by both spouse or civil partner, and children the estate is distributed as follows:
- The spouse or civil partner will receive the personal chattels absolutely. Personal chattels refer to tangible property other than such property which; consists of money, was used at the time of death for the intestate solely or mainly for business purposes or was held at the death of the intestate solely as an investment.
- In addition, the spouse receives a statutory legacy free of tax and costs. The statutory legacy is £270,00.
- The rest of the residuary estate (if any remaining) is divided in half. One half is held on trust for the spouse or civil partner absolutely and the other half is held for the children on the statutory trusts.
Where the intestate leaves a surviving spouse but no issue, the entire estate will pass to the spouse or civil partner absolutely.
The spouse or civil partner must survive the intestate for 28 days to take the estate. If the spouse or civil partner dies within the 28-day period, the estate will be distributed as if the spouse or civil partner had not survived the intestate.
Unmarried couples
Only couples who are in married or civil partnerships can inherit under the rules of intestacy. This means unmarried partners, or lesbian or gay couples not married or in civil partnerships, do not have the same rights as married couples and therefore do not have the automatic right to inherit when their partner dies intestate.
The Inheritance (Provision for Family and Dependents) Act 1975
The rules of intestacy and the laws approach to unmarried couples, means that if you are the surviving partner, you may be left in a financially unstable position. In these circumstances, you could make a claim under the Inheritance (Provision for Family and Dependents) Act 1975 for the Court to decide what provision should be made for you.
To determine if the intestacy rules make reasonable financial provisions for the applicant, the Court will consider the following guidelines:
- The financial resources and needs of the applicant
- The deceased’s moral obligation towards any applicant or beneficiary
- The size and nature of the estate
- The physical or mental disability of any applicant or beneficiary
- Anything else which the court may consider relevant e.g., conduct of applicant
An application to make this claim must be brought within six months of the date of issue of the grant of representation to the deceased’s estate, although the court has discretion to extend this in limited circumstances.
