When a person does not leave a Will, their estate must be divided according to a strict set of rules. These rules are called ‘intestacy’. According to these rules, only married couples, civil partners or close relatives are allowed to inherit or claim an estate.
The division of the estate according to intestacy might be an acceptable solution if you have a relatively small family, an uncomplicated family history, or you simply don’t mind if your spouse, civil partner or children will be the sole inheritors of the bulk of your estate.
However, more and more people are entering into first (or second) marriages with children from previous relationships, creating large blended families. Intestacy does not account for blended families, unmarried partners, complicated living situations, or other dependents.
Choosing to write a Will is the only way to ensure loved ones receive what you want them to upon your death. However, if you don’t leave a Will, here’s what will happen.
What are the rules of intestacy?
The rules of intestacy are used by the government to legally distribute an estate of an ‘intestate’ (person who died without a Will).
Under the rules of intestacy, your estate will be distributed in a specific order. Generally the distribution begins with your spouse, children and descendants, before expanding to other members of your family tree.
Spouses and children are therefore entitled to the bulk, if not all, of your estate.
If you aren’t married or in a civil partnership then the estate will pass to your descendants first, followed by other close blood relatives. Full blood relatives will always be prioritised according to this system, followed by half-blood relatives. Keep in mind that your estate will never pass to a relative related to you only through marriage.
The only example of a non-blood relative who can inherit an estate under intestacy is a legally adopted child (including step-children if formally adopted). This is because for all legal purposes they are indistinguishable from your blood relatives.
Who can inherit my estate under intestacy?
Under the rules of intestacy, your estate is passed onto your spouse and close blood relatives.
In England and Wales this includes:
- Your spouse or civil partner
- Your children (including legally adopted children) and their children
- Your siblings (including any half-siblings) and their children
- Your parents and grandparents
- Your uncles or aunts (full blood) and their children
- Your uncles or aunts (half blood) and their children
If there is no living close member of your family, the estate is absorbed by the Crown and legally becomes ownerless property. This type of ownerless property is called ‘bona vacantia’.
What is ‘bona vacantia’?
‘Bona vacantia’ is the term used to refer to unclaimed goods, or “ownerless goods” or property which has defaulted to the Crown from an intestate.
If a family member claims an estate that’s defaulted into bona vacantia within 12 years from the date the estate was administered, they’ll be paid interest on the share.
Any estate can be claimed within 30 years from the intestate’s death, but if it’s past the 12 year deadline post estate administration then no interest will be paid.
It’s worth noting that the government keeps a list of unclaimed estates, which can be helpful if you’re looking for a family member’s estate. This resource is intended to help families, especially those living or working overseas, find and make a claim to an estate that should have passed to them.
Who cannot inherit my estate under the rules of intestacy?
The rules of intestacy do not account for modern blended families and complex living situations.
Examples of loved ones who cannot inherit your estate under intestacy include:
- An unmarried partner and their children
- A step-child or step-children
- A close friend
- A carer
- A financial dependent
You may be financially providing for a loved one or actively caring for them, but under intestacy they won’t be adequately provided for. If you were to die without leaving a Will, the only course of action for them is to apply for reasonable financial help from the estate. They’ll need legal advice and to be able to show how they are entitled to claim.
Therefore, a Will provides the only way to properly honour your wishes, to care for your loved ones, and to provide for them financially in the event of your passing.
Are there any pitfalls with intestacy?
Intestacy has three main pitfalls which may cause conflict, stress, and financial hardship to your loved ones. Each of these pitfalls can easily be accounted for in a valid, accurate Will.
Your possessions or assets cannot be given to a specific person
Under the rules of intestacy, your assets are combined and divided using specific terms.
This may be distressing for your loved ones if you intended for your spouse to inherit your property, but your child to inherit a business or a specific family heirloom. You may even have a pet, like a parrot or dog, that you want to give to a specific member of your family.
It’s not tax efficient
Under the rules of intestacy, Inheritance Tax must still be collected. However, it’s not efficient and may result in you overpaying.
Inheritance Tax provisions in a Will can help prevent your family from paying too much!
Intestacy doesn’t recognise loved ones who depend on you
Intestacy does not legally recognise unmarried couples, those not in civil partnerships, financial dependants not otherwise related, and non-adopted children (including step-children). Even though it’s possible these people financially depend on you, they will not have immediate claim to your estate.
In some circumstances this can cause a great deal of financial and emotional distress for those who are left behind. The only way to legally ensure your loved ones are cared for according to your wishes is to have a Will.
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