What are common myths of intestacy?

When someone dies without a Will, or intestate, the law sets out what happens to their estate and who is responsible for administering it. This can often lead to uncertainty, particularly as the intestacy rules are not always intuitive.

The intestacy rules date from 1925 and have only been tweaked a handful of times since then. They are very rigid and divide the estate between the deceased’s closest living relatives by blood and by marriage.

Below we address some of the more common misapprehensions and misunderstandings about what happens if someone dies without leaving a will.

Does everything go to the next of kin if there is no will?

The term “next of kin” has no real legal meaning. If the deceased was married, some of the estate goes to the surviving spouse, but not necessarily all of it. If the deceased was married with children, the surviving spouse gets the first £270,000 plus half the balance, with the children getting the other half equally between them when they turn 18.

The house automatically goes to the surviving co-owner?

There are two ways of owning property together. If it is owned as joint tenants, it passes automatically to the survivor regardless of any will or the intestacy rules. If it is owned as tenants in common, each person owns a defined share in the property. In that case, the deceased’s share would pass under the intestacy rules.

It is therefore crucial to check how the property was owned, and our team of experts would be happy to advise you on this.

If there are children under 18, there are rules if there is no will

The intestacy rules do not have a mechanism to appoint a guardian for minor children. That means that if both parents had died before the children turned 18, their family would have to apply to the court to be given guardianship. This is likely to be expensive and time-consuming.

There is also a potential issue where there are children from previous marriages. A change to the intestacy rules in 2014 means that the surviving spouse now inherits a large part of the estate outright.

If you had died leaving children of your own, your spouse could subsequently make a Will leaving their own estate (including what they have inherited from you) to whomever they liked, to the exclusion of your own children. To prevent this happening you would need to make Wills that leave the estate in a trust, and our solicitors would be more than happy to discuss this with you.

If there is no Will then everything goes to the Crown

This only happens if there is no surviving spouse and no surviving blood relatives at all. Nevertheless, it does increase the chances of an extremely distant relative inheriting the entire estate, so if you are concerned about this you should make a Will to set out who should inherit instead.

We’re common law partners so everything goes to each other anyway

It is becoming increasingly common for couples to live together for some time before getting married. You may have heard the term “common-law marriage”, but this has no legal meaning.

Unmarried partners are not currently entitled to anything from the estate under the intestacy rules.

If the actual beneficiaries want to ensure that the surviving partner gets something from the estate, they can make a gift to them. To avoid any inheritance tax implications if that beneficiary then died within 7 years of making that gift, this can be done as a Deed of Variation.

Otherwise, the surviving partner would have to bring a claim against the estate under the  Inheritance (Provision for Family and Dependants) Act 1975.

To do so, they would need had to have lived with the deceased for at least 2 years as if they were a married couple. They would only be able to claim reasonable financial provision for their maintenance (i.e. day-to-day living expenses). Our Contentious Probate department would be happy to advise on this further.

Only the natural children inherit

Adopted children are treated exactly the same way as natural children, provided that they have gone through the proper adoption process.

Illegitimate children are also treated in the same way as legitimate children.

My stepchildren will inherit on intestacy so I don’t need a Will

Blended families are more and more common, so stepchildren are becoming increasingly relevant.

Unlike adopted children, stepchildren do not count as children for the purposes of the intestacy rules unless they have been formally adopted. That means that if a deceased has children of their own as well as stepchildren, only their own children will inherit. The stepchildren could potentially bring an Inheritance Act claim against the estate as a person treated as a child of the deceased, but again this would be limited to reasonable financial provision for their maintenance.

Making a will is the best way to avoid uncertainty

Having a professionally-drafted Will is the simplest way of ensuring that your wishes for your estate are followed. It also significantly reduces the uncertainty that can arise on intestacy as well as making the whole process flow more smoothly.

You can also use your Will to appoint the executors you want, set out any funeral wishes and appoint guardians for any children under 18 that you may have. It gives you the opportunity to consider the value of your estate and whether you would want to carry out any inheritance tax planning.