Intestacy and Wills

Posted: Wednesday, 5 June 2024 @ 12:52

Intestacy and its implications

The rules of intestacy are a pre-defined order of who is entitled to inherit when someone dies intestate and are something we constantly receive queries about.

Only close relatives can inherit under the rules of intestacy. There are only eight specific classes of beneficiary. The order of entitlement is as follows:

  • Married Couples and Civil Partners
  • Children
  • Parents
  • Siblings of the whole Blood (or their children if they have pre-deceased)
  • Siblings of half-blood (or their children if they have pre-deceased)
  • Grandparents
  • Uncles and Aunts of the whole Blood (or their children if they have pre-deceased)
  • Uncles and Aunts of the half-Blood (or their children if they have pre-deceased)
  • If none, to the Crown

In July 2023, the Statutory Legacy amount – relevant when an individual passes away intestate leaving behind a spouse or civil partner AND any children – increased to £322,000.

This now means that the surviving spouse or partner is entitled to receive the first £322,000 of assets plus the personal chattels plus statutory interest from the date of death to the date of payment, with the remainder of the estate divided in half – one half to go to the surviving spouse or civil partner, with the other half to be divided equally between any children.

The rules of intestacy will celebrate their 100th birthday next year and are thus not that aligned with the more modern family dynamics we see today such as cohabitation and “blended families”. In addition, whilst fully adopted children are recognised, foster children and stepchildren are not.

Couples living together who are not married or in a civil partnership – often referred to as “Common law spouses” – are not recognised by the rules. This could turn out to be particularly troublesome, given that the cohabiting couple is the fastest-growing living arrangement in England and Wales.

Did the deceased make a Will?

Making a Will is such an important step, as it provides choice over distribution of a deceased’s estate. A properly constructed Will may well contain gifts, legacies, trusts etc, and distribute the deceased’s estate totally differently to the Intestacy rules.  

Finding or locating the deceased’s actual original Will causes family members additional stress and anxiety when someone dies. A Will details the Testator’s wishes regarding how they want their estate to be distributed, and in many cases, the beneficiaries may not receive what they thought they might.

When trying to locate a Will, there are other documents that you should also keep an eye out for. At the stage of locating a Will, you may already have possession of the birth, marriage, and death certificates, as these would have been required/distributed at the point of registering the death.

Other important paperwork that you should consider gathering are pension details, insurance policies, and bank and/or building society accounts. Whilst you may not need these documents at the time of locating a Will, you will likely need them later down the line if applying for a Grant of Representation in England and Wales (or Confirmation in Scotland). Once you have located these documents, it’s a good idea to keep them in a safe place for ease of access when needed.

How do you find a Will?

There is no legal requirement for a Will to be registered anywhere, professionally stored, or to be disclosed by its ‘Testator’ (The deceased, or the person who made and signed the Will). However, it is recommended for Testators to impart the location of the Will in advance to their chosen Executors. 

So, how do you find out if someone has left a Will? There are a few steps to take when locating a copy of someone’s Will:

Search the deceased’s property.

As an initial step, try to search the deceased’s property to find a Will. It might be filed away in a draw with other important documents (such as those listed above) that will be useful later down the line. It’s worth considering that going through the belongings of the deceased can be emotionally difficult and stressful, so seek support from someone you know to help you with this process.

If you can’t find a Will, keep an eye out for details of a Solicitor, Will storage company, or a Certainty Will Registration Certificate. If a Certainty Will Registration Certificate is located, this means it can be found on the National Will Register.

Ask Solicitors and Will Writers local to the deceased If your search of the property is unsuccessful and you’re unsure of who the deceased may have used to draft or store their estate planning documents, try contacting Solicitors and Will Writing companies local to the deceased. Be aware that only the Executor will be able to obtain documents if they are held by a legal professional or Will Writer. The Will might be with a bank.

Will database

The National Will Register is essentially a Will database with currently around 9.4 million Wills stored in the system. There are three search options available, and prices start at £58.80 (as of April 2024) for a Will Register Search. However, it’s important to consider that there is no guarantee of locating an existing Will, and only the Executors will have visibility of the Will’s contents.

What happens if you can’t find a Will?

If the above steps to find a Will are unsuccessful and you are confident that it’s non-existent, the estate will need to be administered under the rules of intestacy. When an estate is declared intestate, it must be distributed following the rules dictated by law in the country where the deceased was domiciled. These rules are different in England and Wales to Scotland.

In intestacy cases, the person who is responsible for administering the estate of the deceased is known as the Administrator. Similarly to an Executor, an Administrator has the legal and financial responsibility to administer the estate and is usually the next of kin. However, instead of a Grant of Probate, the Administrator will apply for what is known as Letters of Administration.

Why should I professionally store my Will?

If you are currently in the process of estate planning, the easiest way to ensure that your Will is accessible upon your death is to store your estate planning documents with a professional storage provider. There are various benefits to utilising a storage provider, such as:

  • Peace of mind that your Will is easily accessible
  • Availability of the latest version of the original Will for your Executors
  • Availability of relevant codicils and letters of wishes
  • Reduced risk of family conflict
  • If charities are mentioned, they will receive their inheritance
  • The estate can be administered as you have planned for

Ensuring a valid and up-to-date Will is in place ensures peace of mind and less stress for you, your loved ones, and those dealing with your estate after your death. 

We recommend you contact an IPW member to help you get started.

Click here to find a Willwriter local to your area.