Who Inherits Under Intestacy?

In this blog, probate solicitor Chris Strogen answers your frequently asked questions on who inherits under UK intestacy rules.

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Should I make a Will? Won’t intestacy rules protect my family?

It is important that everyone has an up-to-date Will. I am not just saying that because I’m a private client solicitor specialising in preparing Wills. In my job, I regularly see the extra heartache and the legal costs when a loved one dies without a Will or dies with a Will that is out of date and does not reflect their current family or personal circumstances. Most of that stress and the additional costs can be avoided with a well-written Will that is reviewed as life and family circumstances change.

Why make a Will? Won’t the intestacy rules say who the money goes to?

That is a question that I’m often asked. It is right; if you don’t have a Will, then under intestacy rules, your money will go to your relatives. However, dying intestate means you don’t get a say over where your money goes. In some situations, it can mean that:

1. Wealthy parents or siblings get your money (creating a bigger inheritance tax bill when they pass away). However, you might have wanted some of your money to go to a girlfriend, a nephew or to charity.
2. There is an increased risk that family members will fall out over the money allocated to them under the intestacy rules.

Who inherits under the intestacy rules?

Under the intestacy rules, the estate of the deceased is distributed to relatives or goes to the crown if there are no living relatives. The rules say which family members will inherit depending on family circumstances. The intestacy rules say:

1. If the deceased was married or in a civil partnership and has no children, all their estate will go to their spouse or civil partner.
2. If the deceased was married or in a civil relationship but has children, the first £322,000 of their estate will go to their spouse or civil partner, together with the deceased’s personal possessions. Anything over the £322,000 threshold is divided between the spouse and the children. The husband, wife or civil partner receives 50% of the balance, and the other half over the £322,000 threshold is divided equally between the children.
3. If the deceased was not married or in a civil partnership, then the extended family inherit. If the deceased had children, then they share the estate equally. If there are no children, the intestacy rules leave the entire estate to the parents. If the parents passed away before the deceased, then the estate is distributed equally between the deceased’s siblings. The intestacy rules detail the extended family if there are no siblings.

The intestacy rules mean that stepchildren and unmarried partners will not receive a share of the estate. However, they or others may be able to challenge the distribution of the estate under the intestacy rules if they can show that the intestacy rules do not make reasonable financial provision for them. What is reasonable is case-specific and depends on the size of the estate and the needs of the person seeking a share of the estate.

Confusingly, some assets owned by the deceased may not pass under the intestacy rules. If the deceased owned property with another owner as joint tenants, then the deceased’s share in the property will automatically pass to the surviving owner.

Reasons to make a Will

There are several good reasons why everyone should have a Will:

1. If you make a Will, then you decide who gets your money.
2. You can put conditions on gifts. For example, if a child is still a minor on the date of your death, you can say that the child should not get the bequest or share of your estate until they are age 21 or 25.
3. You can decide who should sort out your estate by appointing executors and trustees in your Will. The trustees can be given the power to advance money to your children if they need it. For example, the trustees might advance monies to pay university fees or for a house deposit.
4. If you have minor children, you can appoint a testamentary guardian in your Will.
5. You can use your Will to estate plan and reduce the inheritance tax burden on your estate.
6. Wills and trusts can be flexible and allow you to leave flexible gifts where family dynamics are complicated. For example, in a second marriage, you may want to give your spouse the right to live in the family home until their death, and the property is then left to your children from your first marriage.
7. A carefully prepared Will can reduce the potential for the provisions to be challenged because someone does not think the Will or the intestacy rules make adequate financial provision for them.

In some family scenarios, dying without a Will doesn’t create a lot of additional legal complications, but in some family situations it does, such as:

1. Unmarried partners and families.
2. Where you have been married more than once.
3. If you have young children who need legal protection, such as appointing a testamentary guardian in your Will.
4. If you are a business owner.

Most of us understand the need to sort out insurance for our family, and preparing a Will should be on the same ‘to-do’ list as one of life’s essentials.

Does my Will need updating because of my marriage?

When you marry, any existing Will is automatically revoked. This means if you pass away after your marriage, your money passes under intestacy rules. Those rules may produce a very unfair result or a legal dispute between relatives over who should get what. It is therefore vital that you make a new Will when you get married. Alternatively, if you are getting married within the next 12 months, you can say that your Will is being made in contemplation of your planned marriage.

I am getting divorced. Do I need a new Will?

If your marriage is ended by a court order  (divorce or annulment), your Will is not void or invalid. However, any gift in your Will to your former spouse takes effect as if he or she had died on the date your divorce was finalised.

That usually means the gift to a spouse goes into the residuary estate for the benefit of the residuary beneficiaries. However, if you had left your entire estate in your Will to your former husband or wife, and there are no substitute beneficiaries, then the effect of your divorce is that your estate passes under the intestacy rules.

If you appoint a spouse as an executor or trustee in your Will and you subsequently get divorced, then the Will takes effect as if they had died on the date the divorce proceedings were finalised with the pronouncement of the final order.

If you appoint a former spouse in your Will as a trustee of a trust for the benefit of your children or as a guardian, the trust appointment fails. That might not be what you want, as some Will makers still want their ex-husband or ex-wife to act as a trustee for the benefit of the children.

The best solution is to make a new Will immediately after your separation or divorce, especially if your spouse or civil partner was a beneficiary, executor or a trustee.

I own a property with my partner. I don’t own anything else, so I don’t need a Will.

There is more than one legal way to own a house jointly. The two options are:

1. Joint tenants.
2. Tenants in common.

If you jointly own a house as joint tenants, the surviving partner automatically inherits the property. However, many co-owners buy a home with their partner as tenants in common. This type of joint ownership means that their share of the property passes by their Will, or if there is no Will, under intestacy rules. It is always essential to check how you jointly own a house when preparing a Will.

Can I write my own Will?

You can write your own Will, but probate solicitors do not recommend that you do so. That is because Wills are tricky legal documents. The consequences of getting the Will wrong can be legally expensive and stressful for your family. It can also add to the risk that someone might challenge the Will.

The legal court costs of challenging a Will are high. It can therefore be money well spent to get specialist private client legal advice to make sure your Will is fit for purpose and to get it reviewed when significant life events occur (such as marriage, the birth of children or grandchildren, divorce, new relationships).

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How much does a Will cost?

A bespoke Will drawn up by an experienced and regulated solicitor is not as much as you might think.

Evolve Family Law was one of the first law firms to publish fixed fees for Wills. Take a look at our online price list so you have an idea of the charges before calling or emailing us.

If you already have a Will, then you may want to get us to check and review it. That’s because family and personal circumstances change, so your old Will may not be ‘’fit for purpose’’.

Some people have complex finances and businesses and need in-depth advice on trusts, estate planning, or domicile. However, even if your situation is not complex, it is easy to fall foul of inheritance tax rules. That means your estate could pay more tax than necessary.

Everyone needs a Will, and it is important that people take bespoke advice, at a cost they can understand, to ensure their Will meets their needs.

If you need a Will or want your Will reviewed, then Evolve Family Law can help.

Contact Evolve Family Law Today for Will and Probate Advice.