Posted: Thursday, 10 October 2019 @ 14:56
In my work I’m often approached by family members in
distress when someone dies. For many they are concerned that their spouse or
parent hasn’t made a will and they want to know what happens now with their
estate. This can be a complex area of
law and it is always best to seek advice, particularly if the estate is of any
This article gives an introduction to the legal position
when someone dies without a will, and provides some pointers on steps you can
What is intestacy?
When someone dies without a valid will, they become what is
known as intestate, and their estate must be shared out according to the rules
of intestacy. A total intestacy occurs when a person dies without leaving a
valid will. A partial intestacy occurs when someone dies leaving a valid will,
but the will does not dispose of their whole estate.
What are the rules
The intestacy rules apply to the part of the estate that the
will fails to dispose of. The rules changed in October 2014 which means if the
deceased dies leaving a surviving spouse or civil partner the following
Where there are a spouse and children
the residuary estate is distributed as follows:
If the estate is worth less than £250,000, the spouse or
civil partner receives everything, and the children receive nothing.
If the estate is worth more than £250,000:
The spouse or civil partner receives all chattels
The spouse or civil partner receives £250,000 free of inheritance tax (IHT) and costs plus gross interest from death
The rest of the residuary estate is split equally into two
halves. The spouse or civil partner takes one half absolutely and the children take the other half..
What happens if there are no children?
Where the deceased leaves a surviving spouse or civil
partner (but no issue) the spouse or civil partner inherits everything.
What happens if there are no spouse and children?
there are no spouse or children other rules apply which will lead to a hierarchy
of other people inheriting including:
Their parents (equally, if both alive).
Their brothers and sisters on the statutory trusts.
Their half brothers and sisters on the statutory trusts.
Their grandparents (equally, if more than one alive).
Their uncles and aunts on the statutory trusts.
Their half-uncles and aunts on the statutory trusts.
Who deals with the estate?
It is the ‘administrator’ who deals with the estate. There
are Court rules which sets out the order of priority of those who have a right
to act as administrator and to apply for a grant in an intestate's spouse
(husband or wife) - even if you were separated, civil partner or child. If none
of them survive then you have to look beyond these close family members.
What is a grant and why do you need it?
The grant, which the administrator is entitled to, is a grant of letters of
administration. The grant is the document which gives the administrator the
authority to administer the estate and the administrator s referred to as the
administrator of the estate. It is important to note that the administrator
does not have authority in relation to dealing with the estate until they
obtain a grant, unlike an executor, whose authority derives from the will and
is confirmed by a grant. You will need
the grant if the deceased had more than a set amount in bank accounts or solely
owned a property.
How do you prepare for grant of probate?
The first step in applying for probate involves finding
paperwork. Specifically, you need to find certain documents and make copies of them.
You will need to get at least six certified copies of the following documents:
· death certificate, birth certificate, marriage or civil partnership certificate, if
the person was married.
You’ll need to attach copies of these various documents to
probate forms, and to access the deceased’s bank accounts, investments or life
What about inheritance Tax?
Once you’ve got the value of the estate and how much debt
the deceased had, you need to work out the Inheritance Tax due. If the total
value of the estate after debts are taken out is over £325,000, then there is
Inheritance Tax to pay. If you live in England and Wales currently, a flat fee
of £215, or £155 if an estate uses a solicitor to apply for probate is made on
all estates over £5,000. There is no charge for estates valued under £5,000.
You need to fill in: Probate Application Form PA1 Inheritance Tax Form IHT400
if the estate is worth more than £325,000 Inheritance Tax Form IHT205 if the
estate is worth less than £325,000.
Steps To Take .
1 Get as much as information as you can about the estate
Check what assets the deceased had in his or her
name – It can make a difference as to what happens (if an asset is in joint names
intestacy does not apply)
Get Advice Prior to Acting – It is very easy to
make errors due to the complexity of the law.