What is ‘intestacy’?


Helen Smith, Wills and Probate solicitor for Derbyshire Legal Services Limited, examines why ‘intestacy’ has been #trendingHelen Smith Wills Probate Solicitor

It seemed such an unlikely occurrence that the arguably unfashionable subject of wills (or the lack thereof) was suddenly trendy on social media! Further investigation was therefore needed to find out how and why!

It soon became apparent that it is, in fact, a marketing mechanism to highlight the merits of making a will. Whilst most people recognise that, at some point in their lives, they should probably get around to creating a will, action is very often deferred due to its rather sobering connotations. There is also perhaps a general lack of recognition as to the effects of not having one in place.

Without a will, an individual is intestate (literally meaning a person who has died without having made a will). This can have far-reaching implications, not only in respect of who inherits on an individual’s death, but also in terms of who is able to legally administer the assets (known as the estate). Those appointed in a will as executors not only will be chosen by the deceased individual but will also have authority from the date of death to deal with the estate. In legal terms, on an intestacy, the estate cannot be administered until a Grant of Representation has been obtained from the Probate Registry (with the costs that this involves) appointing ‘Personal Representatives’ (or administrators). The choice of those able to act as administrators in these circumstances is laid down by law.

Similarly, in terms of who inherits on death, a will provides an individual with the choice of those intended to benefit (and those who should not!), whereas on an intestacy those standing to inherit are again laid down by law. It often comes as a surprise to people that any surviving husband or wife does not necessarily inherit the entire estate as of right. Surviving children may also be entitled to a share and this can put enormous pressure on families in trying to sort things out. Where an individual is not married and has no children, the wider family will potentially inherit, and this can cause problems in locating those family members (here you may recall the heir hunting programmes popular on the television a few years ago!) This process can also incur enormous costs.

Additionally, considerable problems can be encountered where an individual dies intestate leaving an unmarried partner and children. In that scenario, the partner potentially inherits nothing but the children will receive the entire estate (subject to any assets held as joint tenants). Whilst the law on intestacy was updated in recent years so that a surviving spouse was provided for more favourably under the rules, it was not so bold as to encompass unmarried couples. With the lack of inheritance tax relief available to unmarried couples as well, a will can be a vital tool for succession planning purposes for those in cohabiting relationships.

At Derbyshire Legal Services we can assist in unravelling the issues made by an intestacy and assist in administering the estate of someone who has died without making a will. We can also advise you in terms of making a will to avoid an intestacy situation arising.

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