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Intestacy and what it means

Damon Parker, a partner in leading private client law firm Harcus Sinclair, explains the effects of intestacy.

If you have any possessions, assets and savings and have any dependents, you should make a will.

If you don't have a will, get it done now! You never know when it will be too late.

Triggers for making a will are:

  • getting married;
  • a change in your family circumstances - separation, divorce, re-marriage;
  • having children;
  • buying or selling a property;
  • a change in your financial circumstances; and
  • a high risk job or sporting activity.

If you die without making a will, you are then intestate, and the rules of intestacy will apply.

Effect of Intestacy

1. If the deceased is survived by a spouse and children:

  • The spouse receives all personal chattels; £250,000 absolutely (or the entire estate if less); and a life interest in one half of the residue, if any.
  • The children receive one half of any residue on the ‘statutory trusts’; and the other half of the residue on the ‘statutory trusts’ upon the death of the spouse.

2. If the deceased is survived by a spouse but no children:

  • The spouse receives: all personal chattels; £450,000 free of Inheritance Tax absolutely (or the entire estate if less); and one half of the residue absolutely.
  • The remainder is distributable to the deceased’s parents. However, if neither parent has survived the deceased, the remainder is held on trust for the deceased’s brothers and sisters (or the children of any deceased brother or sister).
  • In the event that the spouse survives, and there are no children, no parents, brothers or sisters or children of brothers or sisters, the spouse receives everything.

3. If no spouse survives, the estate passes by a strict order of entitlement to:
a) the deceased’s children in equal shares (or remoter lineal descendants such as grandchildren, great grandchildren etc);
b) the deceased’s parents;
c) the deceased’s brothers and sisters (and the children of any deceased brother or sister);
d) the deceased’s half-brothers and half-sisters (and the children of any deceased half-brother or half-sister);
e) the deceased’s grandparents;
f) the deceased’s uncles and aunts (and the children of any deceased uncle or aunt);
g) half-brothers and half-sisters of the deceased’s parents (and the children of any deceased half-uncle or half-aunt); or
h) to the Crown, the Duchy of Lancaster or the Duchy of Cornwall.

Write a will now

Sometimes people are wrongly believed to have died intestate because nobody knows they have written a will, or knows where it is.

If you have not written a will, organise it now. Appoint a well qualified solicitor to advise you or contact a specialist will writing company such as Heritage Will Writers.

If you have written a will, update it regularly.

It is a good idea to register your will with companies such as Heritage Will Writers.

My Last Song provides members with a secure access Lifebox into which you should place a digitised copy of your latest will, your instructions to executors, and other useful information.

This way your estate will not be subject to the laws of intestacy, and it will reduce the opportunity for family disagreements and expensive and distressing delays in carrying out your wishes.

There is no excuse for putting it off. You never know when it will be too late...

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