We always stress to clients the importance of making a Will. This is not only so that assets are left to beneficiaries of one’s own choosing, but also so that other important instructions can be carried out, such as who will administer the estate, who will act as guardian to any children (after the surviving spouse), what will happen to personal possessions and even who will take care of any pets.
However, such advice is not always followed, and if there is no valid Will when someone dies, then we have an intestacy. If there is a Will but it does not dispose of all the assets, then it is termed a partial intestacy.
An invalid Will also result in an intestacy, which can arise in a surprising number of ways. For example, a subsequent marriage automatically revokes a previous Will as does a sole beneficiary predeceasing or divorcing the deceased. In addition, a failure to deal with the formalities such as the correct witnessing of the Will also makes the Will invalid.
The laws and regulations relevant to intestacy come from the Administration of Estates Act 1925, as amended by the Inheritance and Trustees’ Powers Act 2014.
The general principle is that, in the case of a non-existent or invalid Will, the estate is shared by relatives in the highest category to the exclusion of relatives in a lower category. However, where there is a surviving spouse and children, the surviving spouse may be required to share the estate with the children depending on the size of the estate.
The broad rules are as follows:
Joint assets pass by survivorship and are deemed to be outside of the Will. Thus, joint beneficial ownership of a house passes to the survivor, as does a joint bank account.
A surviving spouse with issue would get the first £322,000 of the estate absolutely (increased from £250,000 since 26 July 2023), plus personal chattels and half of anything remaining. The child/children will inherit the other half of anything remaining, split equally between all children.
Where there is a surviving spouse but no issue, the surviving spouse will inherit all the personal property and belongings and the whole of the estate from the date of death.
If there is no surviving spouse or issue, then the order of inheritance is:
- parents
- brothers & sisters of whole blood
- brothers and sisters of half blood
- surviving grandparents
- uncles and aunts of whole blood
- unless and aunts of half blood.
The details are complex and professional advice is usually required.
Those inheriting the estate are also the administrators for it, and a maximum of four administrators can be appointed. It is generally advisable to appoint at least two individuals, in cases where there are young children or a long-term interest.
It is permissible to renounce a claim under intestacy so that the next in line can benefit.
As you can see from the above, it is much simpler to have a Will in place.
The next step
If you have any enquiries about making a Will, please contact Michael Brooke on m.brooke@uhy-rossbrooke.com, or your usual UHY adviser.
