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What To Do When Someone Dies Without A Will

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 great value. This article gives an introduction to the legal position when someone dies without a will, and provides some pointers on steps you can take.

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 of intestacy?

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 applies:

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 absolutely.

The spouse or civil partner receives £250,000 free of inheritance tax (IHT) and costs plus gross interest from death until payment. 

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? 

If 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 insurance.

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

2.       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)

3.       Get Advice Prior to Acting – It is very easy to make errors due to the complexity of the law.