Gardner Leader

Legal questions – Intestacy Rules

This month Lucy Samara, Solicitor within the Inheritance Protection Team at Gardner Leader LLP, provides brief details about dying without leaving a Will.

What does ‘intestate’ mean?

Intestate is the phrase used to describe an individual who dies without leaving a Will.  Even if you have made a Will, it would have been automatically revoked if you have married since making it.

If I die intestate will my spouse or civil partner receive all of my estate?

No, it all depends on which family members survive you.  If there are children, the surviving spouse or civil partner will inherit the statutory legacy which at present is £125,000, all personal possessions and a life interest in the remainder of the estate.  The surviving spouse or civil partner will not inherit all of the estate.  The government has announced an increase in the statutory legacy from February 2009 to £250,000.

What happens to the remainder of my estate?

If you die leaving children then they will take the remainder of the estate equally when they reach the age of 18 years. 

If I were to die without leaving any children, will my Spouse or Civil Partner receive all of my estate?

No, if you were to die leaving either parents, brothers or sisters, or nieces and nephews then the survivor would receive a statutory legacy of £200,000, together with all of the personal possessions and a half share of the remainder of the estate, with the remaining half share of the estate passing to the surviving family members.  This is set to increase to £450,000 in February 2009.

If I were to die unmarried, would my partner receive an interest in my estate?

No, even if you had been cohabiting for many years, under the intestacy rules your partner would not be entitled to receive anything from your estate. Your partner would have to make a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.  Unlike married couples, the survivor would not be entitled to the statutory legacy or your personal possessions, including the contents of the family home.  If you die leaving children then they will inherit the entire estate. If you did not have any surviving family members then your estate will pass to the Crown. 

What would then happen to property that we own together?

If the property is owned as “Joint Tenants”, it will pass to the surviving joint owner.  However, if you hold the property as “tenants in common”, your share will not pass automatically to your partner, but instead will fall under the rules of intestacy and, depending on which family members survive you, they will inherit your interest.  This may cause difficulties for your partner because the beneficiaries and your partner may have different views on what should happen to the property.  The beneficiaries may decide that they would like to liquidate their asset and force your partner to either sell the property or to purchase their share.  

What happens if I have divorced or separated?

Divorce does not revoke a Will but any gift made to a former spouse or civil partner will fail.  Separation is treated differently and unless you are legally separated, your partner could inherit under the terms of your Will. Anyone in this situation should consider taking professional advice and possibly amending their Will.

Details: Lucy Samara, Gardner Leader LLP, Tel. 01635 508154,

e-mail l.samara@gardner-leader.co.uk

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