What is intestacy and how does it work?

If you do not have children

If you have no children the position may not be too much of a surprise. Your husband, wife or civil partner will inherit everything. If there is no husband, wife or civil partner then your parents will inherit.

If your parents have pre-deceased you then there are other categories of relatives (brothers, sisters, uncles and aunts) that may become entitled to benefit. Whilst this might represent the normal outcome of the rules, it is important to point out that the actual term used is not specifically no ‘children’ but no ‘issue’. ‘Issue’ covers a far wider set of relatives including your children, grandchildren and remoter descendants. Either way, this may not be what you would like to happen.

If you have children

If there are children then the situation becomes more complicated. The husband, wife or civil partner keeps all your assets (including property) up to the value of £250,000, and all your personal possessions, whatever their value.

The remainder of the estate will be shared as follows:

• the husband, wife or civil partner gets an absolute interest in half of the remainder
• the other half is then divided equally between the surviving children

If there is no husband, wife or civil partner then the children will inherit and if a son or daughter (or other child where the deceased had a parental role) has already died, their children will inherit in their place.

What are the implications?

If you die without a valid Will then a number of very difficult issues may arise for those you leave behind.

• Whilst there could be a number of very significant financial difficulties if you do not have a valid Will, the most critical of all the implications is the guardianship of children. A Will provides a means of nominating the guardian you would want should both parents die. If both parents die and there is no appointment of guardians for children under 18, then these children can be taken into care, and the Courts decide who will look after them.
• Not all the assets you had hoped would provide an income to your spouse may be his or hers to claim
• You may end up with a situation where the family home might need to be mortgaged to pay your children their part of the inheritance
• If you are married but separated, a large proportion of your estate may revert to your estranged partner at the expense of your children
• Another serious problem with intestacy is that so many people nowadays aren’t married to their partners and this is where intestacy can cause real hardship. The intestacy rules make no provision for unmarried partners, so if one of them dies without a Will, the other is left with nothing and could lend up losing their home, if the house was owned by the other partner.

People in these circumstances may need to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 which can involve lengthy, complex and costly Court proceedings.

If you don’t have a valid, up to date Will you might end up hurting the ones you love the most.

Please note that the information provided in this article only outlines the intestacy provisions, and should not be relied upon for the purposes of estate administration or Will planning. Advice should be sought from a solicitor when dealing with intestate estates and/or Will drafting.

Call our Will writing team at Wellers Law Group who would be more than happy to discuss any thoughts you have from this short article. Please call 020 8464 4242 for our Bromley office, 01732 457575 for Sevenoaks or 01483 284567 for our Surrey office. 

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