Summary
If you live in England and Wales and die without having made a Will, your estate is divided under the Rules of Intestacy, a review of which has been in force since 2020.
We discuss the Rules of Intestacy, and encourage you to make sure you have a valid Will. And if you have a loved one who has died intestate, please refer to our Intestacy Flowchart to see where you stand.
What is ‘Intestacy’? And what happens if you die with no Will?
In the event that an individual dies in England and Wales without a Will or their Will only disposes of part of their assets then their residuary estate (or the undisposed part thereof) will fall under the Rules of Intestacy – described in our Rules of Intestacy Flowchart.
The current Rules of Intestacy came into force on 1st October 2014 and under these Rules, where someone dies leaving a spouse but no surviving children then the residuary estate is paid to their spouse absolutely. If however, the deceased dies leaving a spouse and surviving children then their residuary estate is divided as follows:
- The surviving spouse will keep all the assets (including property), up to £250,000.00 (known as a Statutory Legacy) and all the personal possessions.
- The surviving spouse will also receive an absolute interest in half of the remainder of the residuary estate and,
- The other half is then divided equally between the surviving children.
The Rules of Intestacy that Apply Today
The Government made a change on 6th February 2020. In the intestacy rules as of 2020, the Statutory Legacy increased from £250,000.00 to £270,000.00.*
The increase was most certainly a welcome change. However, at Cunningtons we wish to ensure that you do not rely on future increases of the Statutory Legacy as a reason for not having your Will drafted. It is incredibly important that each individual has their Will drafted by a qualified Solicitor especially as under the 2020 Rules of Intestacy, unmarried partners will not inherit.
*Please note that Inheritance Law in the UK may vary between the nations: the Rules of Intestacy covered here only specifically apply to England and Wales.
Avoiding the Pain of Intestacy
The president of the Law Society, which has also reported on the matter recently, reinforces our view and states:
“Writing a legally valid will with the help of an expert solicitor ensures people’s estate is inherited exactly as they would choose and can prevent a whole raft of problems landing on loved ones when they are grieving.”
We never know when our life will end, so it is important that we all make a valid Will – just in case. And if you have been left in the painful position of having a loved one die intestate, contact us to discuss what can be done.
If you would like further information about writing your Will – or you wish to review the Wills or LPA you currently have please contact the Wills and Probate team on 01376 567280.
Visit our branches for more information: Braintree, Brighton, Chelmsford, Croydon, Hornchurch, Solihull and Wickford.
Hello,
My father recently passed away on the 16th December in Hospital, but when he was admitted this final time unbeknownst to me, he named his sister as his next of kin, but I suspect he wasn’t compos mentis at that time.
As his only son and him never marrying, I am his actual next of kin and I’m registered as such at the Hospital A&E, the problem seems to have been that this information wasn’t passed onto the ward as it should of been, and because there are issues between myself and the sister she very cruelly never informed me of his passing, instead I had to ring around myself, looking for answers from the Hospital who on the 20th December refused to give me any information as they said that the sister was the next of kin, I texted her and texted and called my father’s phone but no answer, on the 22nd December, I rang Hospital again to demand answers from the ward, and I ended up speaking to the ward manager who said he needed to get some information together for me once he confirmed who I was, he then rang me back 10 mins later to give me the harrowing news that not only had my father passed but he passed 6 days previous on the 16th December, this was devastating news to find out he had been dead all this time and I wasn’t able to be with him in his last moments, to their credit the ward manager did take full responsibility for the debacle but that was the least of my worries.
To add insult to injury when I rang the sister to ask her why hadn’t she informed me she came out with a pack of very hurtful and unsubstantiated lies about me saying she promised my father she wouldn’t tell me and that he hated me and even accused me of stealing money off him, I was in absolute shock, I have looked after all my father’s affairs for a very long time and his trust in me was never in question, but in the interim between the 16th and 22nd December, the sister has taken all his belongings from hospital including his keys to his council house, his cars, any belongings and valuables including access to a considerable amount of cash that’s I know is in his house which is probably gone now, she obviously had an agenda all along as all she ever mentioned was his money. What makes it worse is the fact that she only came back into his life in 2015 as he was estranged from his entire family for the last 20 years, and on many occasions he expressed his concern about any of his family getting any of his belongings in the event of anything happening to him, unfortunately the man that came out of hospital wasn’t the same person who went in, as he seemed to be paranoid and confused at times, and he was talking to me quite rude, it was because of this we decided to give him a little space as he had asked me not ring him he would ring me, but in that space of time his sister must have got into his head and turned him against me as he wouldn’t answer calls or texts or if he did it was very brief. Although this was not ideal, he had done this before when he had prostate cancer in 2015-16, he completely cut contact with us and said when he was better, he would get in touch he just wanted to be left alone to deal with things.
I have sent her a LBA stating that by the rules of Intestacy, I’m the next of kin and not her, she is one of four siblings, I also set out my intentions if I didn’t get the keys and everything she had taken wasn’t returned by today 2nd January 2022 at 6pm, I’ve told her I will be ringing the Police and getting the locksmith round should she not comply, which she hasn’t, but don’t know if its within my rights or indeed the law to forcibly change the locks, also my understanding is Local Councils or HA only give you a couple of weeks to move out after death as the house hasn’t been emptied of his things, but she still has his dog out the backyard being fed under the gate by a neighbour, RSPCA or Dogs Trust don’t seem to be able to help me at all. I think I’ve managed to freeze one bank account and gave them his Death Certificate and filled out the Bereavement form etc, I then had to confirm my identity using my passport a few days later so that’s all going through but I’m not 100% sure.
Could you please advise me on what to do next, I can’t afford a solicitor or not sure if I qualify for Legal Aid, but I’m sure she must be breaking some law doing what she is doing, she has even moved his car to her brothers off his property. Just to clarify its only cash, valuables, personal belongings, bank accounts, and cars involved he didn’t own any property, your help would be much appreciated.
Thank you for your comment. Please accept my sincere condolences on your loss.
Your enquiry raises a number of issues:
The term ‘next of kin’ is commonly used however it has no real legal definition. Often the term is used when referring to an emergency contact, people are often asked to provide details of an emergency contact when they are admitted to hospital.
No one is automatically ‘next to kin’. Whilst the term is often used to refer to nearest blood relatives, anyone can name whosoever they wish as their ‘next of kin’ it could be a family member, a friend or even a professional.
A ‘next of kin’ has no legal rights, whilst they may be kept informed of a patient’s condition and consulted as to their views or wishes they cannot make any decisions about the health and welfare of the patient or about life-sustaining treatment. The only way to appoint someone you trust to make decisions about your health and welfare or make decisions about life-sustaining treatment on your behalf is to appoint them as an attorney under a lasting power of attorney for health and welfare. Lasting powers of attorney cannot be used until they have been registered with the Office of the Public Guardian, we would recommend registering them straight away so that they are ready to be used when they are needed.
The only exception to the above is if someone is under 18, their parent or guardian may be able to make decisions on their behalf.
When someone dies, their estate (assets held in their sole name or as tenants in common with someone else) either passes under the terms of their Will or if they do not have a valid Will at the date of their death then under the rules of intestacy.
A Will should appoint Executors, these are the people who are able to attend to the administration of the estate and, for example, take possession of the house keys and car whilst the estate is being administered. The Executors must administer the estate in accordance with the law and the terms of the Will.
If there is no Will and the estate passes under the rules of intestacy it is the people who inherit under those rules who are entitled to administer the estate, they are referred to as personal representatives. Exceptions to this are if a minor or someone who has lost capacity inherits.
It is therefore important to first establish whether there is a Will and if there is who is appointed as an Executor. If there is no Will then, based on the information you have provided, you are the only person entitled to administer the estate and all keys, personal items etc should be returned to you.
Unfortunately, legal aid is not available in such situations but please do contact us so we can discuss the matter further.
You say in the second paragraph of The Intestacy Rules that Apply Today section that ‘unmarried partners will not inherit’. What happens then, if there is no Will who does inherit ?. Assuming there is a badly drawn up Will who would inherit??
What if it can be proven that the couple were not legally married because one of them was not legally divorced from a previous marriage whatt happens then?.
I am a bit confused as I thought the estate of the deceased would pass to the surviving party or children.
Thank you for taking the time to read our article.
If there is no Will then the statutory rules of intestacy set out who receives the estate and it all depends on who survived the deceased. If at the time of their death the deceased was unmarried and had children (the term children includes legally adopted children but does not include step children) then the estate will pass to the children, if one of the children predeceased the deceased leaving children of their own then their share of the estate will pass down the stems of the family tree to their children (i.e the deceased’s grandchildren). If the deceased had no children and was survived by their parents the estate will pass to their parents, if their parents had predeceased then it will pass to the deceased’s siblings of full blood or of they too had predeceased then to their children, if there are no siblings of full blood it will pass to siblings of half blood or if they had predeceased then to their children, if there no siblings of half blood it will pass on to grandparents of the deceased, if there are no grandparents it will pass on to aunts and uncles of whole blood or their children if they predeceased the deceased or if there are none then to aunts and uncles of half blood or their children if they predeceased the deceased. Finally if the deceased was not survived by any of those family members the estate passes to the crown.
Where there is a badly drafted Will the estate will pass in accordance with the terms of that Will, provided the Will was validly executed (signed by the deceased in the presence of two independent adult witnesses who also signed in the deceased’s presence and in each other’s presence). Often poorly drafted Wills, such as homemade Wills, cause a lot of administrative difficulties and can end up costing the estate far more in legal fees and often litigation legal fees than instructing a solicitor to draft a Will would have cost.
The act of entering into a marriage whilst already married to another party is referred to as bigamy and is a criminal offence in England under section 57 of the Offences Against Person Act. If the deceased was not legally divorced when they remarried the second marriage is not a legal marriage and is considered void.
We hope the above has helped to clarify the position for you. If you do have any further queries please don’t hesitate to contact our probate team on 01376 567280 or bryony.wilmshurst@cunningtons.co.uk