“Do I need a will?”
It’s a question a lot of us ask, especially if we wish our belongings to be passed to our spouse or children, and that happens automatically, right?
Unfortunately, the answer is no.
When someone dies without a will, they are said to have died intestate. This is because, without a will, the rules of intestacy govern how your estate is distributed.
This means neither you or your family have a say in who receives your assets. It also means you might not pass on your estate in the most tax-efficient way, and your family could receive less. Under intestacy rules, friends or organisations close to your heart could receive nothing.
If you’re going to rely on the rules of intestacy, it’s important to understand exactly how they work.
Rules of Intestacy Flowchart
Married and Civil Partners
Many people assume that the entirety of their estate, made up of all their assets (property, money, possessions, etc.), will be passed onto their surviving spouse or civil partner.
Firstly, only spouses who were married or in a civil partnership can inherit under the rules of intestacy. Previous spouses do not inherit if you’re divorced or the civil partnership was legally ended. On the other side, estranged partners will inherit under intestacy rules if the married or civil partnership was not legally ended.
Secondly, some assets that are jointly owned do not form part of the estate. For example, property owned as joint tenants passes automatically to the other surviving owner, most often a spouse.
Finally, if you’re not married or in a civil partnership with your partner, they will not be able to inherit, even if you live together.
Furthermore, the size of your estate will determine exactly how much your spouse inherits. If the sole named assets of the estate are worth more than £250,000, your spouse will inherit:
- All the personal belongings owned by the estate.
- The first £250,000 of the estate.
- Half of the remaining estate.
The remaining estate will be distributed to other surviving relatives. However, if there are no surviving relatives, your spouse will inherit the entire estate.
Following your spouse’s inheritance, the remaining estate (or whole estate if there was no surviving spouse) is divided based between your close relatives, in the following order.
If there are children, they inherit as follows:
- If there is a surviving spouse: The children will inherit all of the remaining estate, after the spouse has inherited their share (as described in the previous section). If there are two or more children, the estate is shared equally.
- If there is no surviving spouse: The entire estate is distributed equally among all remaining children.
These rules are applied equally to all children, including those from different relationships the deceased may have had.
Children of unmarried parents have the same rights to inherit under the rules of intestacy, and can also inherit from grandparents and great-grandparents who have died intestate.
Children who have been adopted (including step-children who have been formally adopted by their step-parent) can inherit. Where a child has not been formally adopted they cannot inherit, as they are not a biological relation.
Where children do inherit, they do not receive their assets immediately. Instead, they are managed by a trust until:
- they are 18 or;
- they form a marriage or civil partnership under this age.
Grandchildren and great-grandchildren are unlikely to inherit under the rules of intestacy but can do if under the following circumstances:
- Their parent or grandparent died before the person who died intestate.
- Their parent or grandparent inherits from the person who died intestate but died before reaching 18 or forming a marriage or civil partnership.
Parents, Siblings, Grandparents, Aunts and Uncles
If there is no surviving spouse, children or direct descendants, your estate is passed on in this order:
- Your estate is shared equally between your parents.
- Your estate is shared equally between your full siblings. If you have no full siblings, your estate is shared equally between your half-siblings.
- Your estate is shared equally between your grandparents.
- Your estate is shared equally between your aunts and uncles. If you have no full aunts and uncles, your estate is shared equally between your half-aunts and half-uncles.
Nephews and nieces may also be able to inherit, depending on whether the parent directly related to the person who died intestate has also died.
Who Cannot Inherit
Under the rules of intestacy, there are a number of people who cannot receive an inheritance from your estate. These include:
- unmarried partners
- lesbian or gay partners not in a civil partnership
- relations by marriage, eg. unadopted step-children or in-laws
- close friends
While under the rules of intestacy these groups cannot inherit, they may still be able to apply to the court for financial provision.
What If There are No Surviving Relatives?
In the event that you die intestate and have no surviving relatives to pass your estate onto, your entire estate will pass to the Crown, under a process known as bona vacantia.
This means the Treasury Solicitor then becomes responsible for dealing with the estate, and while individuals who do not qualify under intestacy rules can apply for a grant from the estate, there is no obligation for the grant to approved.
Probate law is complex and full of subtleties. This article only provides a broad outline of what could happen if you die without a will.
For that reason, it’s always worth seeking legal advice specific to your situation.
If you’re expecting an inheritance from someone whose died intestate, or do not qualify as a beneficiary but think you should, get in touch with Glaisyers to discuss your case.
Likewise, if you don’t currently have a will in place and would like a say over how your estate is distributed, speak to our team today.Back
Chris is a Senior Solicitor and is head of the firm's Private Client department.
Chris Burrows - Head of Private Client
To discuss how Glaisyers can assist you contact Chris Burrows on Chris.Burrows@glaisyers.com or via 0161 832 4666.