What Does Intestacy Mean

Intestacy or dying intestate means a person has passed away without a valid Will. The person’s estate is therefore distributed under the intestacy rules. 

In this article, Will and probate solicitor, Chris Strogen, looks at what intestacy might mean for you or your family. 

If you need help with making a Will or with probate and estate administration call our team or complete our online enquiry form.  

Passing away without a Will  

If you die without a Will your family will not have the guidance you could have given in a Will. A Will does not just say who should inherit your estate. A Will can also: 

1. Appoint executors to administer your estate

In a Will, you can choose the best person for the job of executor. That might be your husband or wife, a friend, an adult child, your Will solicitor or a combination of these people. You may know that asking your spouse and your children to work together as executors will not work in your family circumstances and in your Will you can appoint your executors with care 

2.Set out when your chosen beneficiaries will inherit

You may not want your children to come into their inheritance until they are 21, 25 or 30 so they are a bit more mature when they receive a life changing amount of money 

3.Protect your minor children by appointing a testamentary guardian in your Will  

4.Ringfence assets in a trust so your trustees can distribute the income or capital in your estate to the discretionary trust beneficiaries

after considering their circumstances and making distributions in a tax-efficient manner. A trust can be very helpful in a blended family or where there are concerns that if a gift is left outright to a family member it will be wasted or end up being used to fund the beneficiary’s divorce settlement  

5.Make small bequests so friends or grandchildren are not forgotten as they are left an item of sentimental value or a gift of money 

A Will is a very powerful document as it sets out the testator’s wishes. All of us should have a Will to protect our loved ones. That is particularly important if your estate would not pass following your preferences under the intestacy rules. For example, a much-loved unmarried partner of 20 years inherits nothing under the intestacy rules. For example, depending on the size of your estate, a spouse you married 6 months before your death may inherit everything leaving nothing to your 4 children from your first marriage. 

The rules of intestacy explained 

If there is no Will your estate passes under the rules of intestacy. There is no discretion – the rules apply whether or not they are what you would have wanted to happen to your estate. 

As the intestacy rules are rigid, they can create family upset. For example, if your cohabitee will not receive anything or if the family heirloom you verbally promised to your grandson is inherited by your new spouse. 

The intestacy rules say:  

• If the person who died was married or in a civil partnership and had no children, all their estate goes to their husband, wife or civil partner 
• If the person who died was married or in a civil relationship and has children, the first £322,000 of their estate goes to their spouse or civil partner, together with all the deceased’s personal possessions. If the estate is worth more than  £322,000 then the spouse or civil partner gets half the balance and the deceased’s children split the remaining half between them 
• If the person who died was not married or in a civil partnership, but has children, the estate goes to the children. If there are no biological or adopted children, the estate goes to the parents and the intestacy rules continue with a list of more distant relatives in order of preference.

If the intestacy rules create unfairness 

If the intestacy rules create unfairness, then there is the potential to sort things out by the beneficiaries under the intestacy rules agreeing to forgo their inheritance or share their inheritance. That does not always happen as an unmarried partner of 20 years may not get on with the deceased’s adult child from a previous relationship or with the deceased’s parents so the family is unable to negotiate a compromise on how to share the estate.   

If the family cannot sort out the difficulties created by the lack of Will and the intestacy rules then a disappointed unmarried partner or other relative could make a court application to claim a share of the estate because the intestacy rules did not make reasonable financial provision for them. The court must look at each case on its facts. For example, if the unmarried partner is a successful business owner with a good income and a property owner, the court may decide that they do not need a share of the estate. The ruling might be different if the unmarried partner was living on a state pension and the deceased’s adult children were all homeowners and doing well for themselves. 

The problem with challenging the intestacy rules is that it can create ill will within a family and it costs both time and money. It is a lot simpler and cheaper to make a Will.   

Avoiding intestacy 

Avoiding intestacy is easy. All you must do is make sure that you and your loved ones have a Will. It is also important to review your Will and make sure it is up to date. If your Will is not up to date you may end up with a partial intestacy. For example, if you leave half your estate to your brother but your brother passes away before you do so. A partial intestacy can be avoided by updating your Will to name a new beneficiary. In any new Will, it is a good idea to include a ‘what if’ clause. For example, you leave half your estate to your nephew but if he passes away before you then the legacy is shared between his children. 

Our solicitors can help you with all your Will and estate administration needs, including if you are unsure about what to do if a relative has passed away without leaving a Will.   

If you need help with making a Will or with probate and estate administration call our team or complete our online enquiry form.