In this situation, the intestacy rules will apply to determine who will inherit the estate, meaning that there will be no adherence to any of the deceased’s preference or wishes. This lack of control over the assets of a loved one can be extremely frustrating for the family and can lead to an arduous, and often acrimonious, court process to determine where the assets are to be distributed.

Intestacy rules in England and Wales

If the deceased has left a valid will, the process on death is relatively simple. The executor named in the will can apply for the grant of administration, allowing them to divide the estate in accordance to the will.

Where the person has died intestate, there will be no executor to apply for the grant. It’s possible for someone to apply for a grant of representation if they were either the spouse/civil partner or child of the deceased. Partners who fit neither of these descriptions are unable to apply for this grant.

In England and Wales, the assets will automatically pass to the spouse or civil partner of the deceased. If there are no children (including adoptive) or other descendants, referred to as ‘issue’, the spouse will receive everything.

In the instance where there is issue, the spouse will receive the personal chattels, a statutory legacy of £250,000 and half of the residue, leaving the other half to be split between the issue in statutory trusts.

If there is issue but no spouse, the issue will receive everything based on statutory trusts. The terms of these trusts are that each beneficiary must survive the intestate and reach the age of 18 or marry before this age in order to inherit. If a beneficiary dies before the intestate, their own issue can inherit in their place following the conditions laid out above.

Where there is no issue or a spouse or civil partner, the whole estate will pass in accordance with the statutory order detailed below.

1. Parents
2. Siblings of whole blood
3. Siblings of half blood
4. Grandparents
5. Uncles and Aunts of whole blood
6. Uncles and Aunts of half blood
7. The Crown as bona vacantia (“vacant goods” – the name given to ownerless property)

However, not all assets necessarily pass under a will. Property that is specifically excluded from the succession estate includes:

• property held as joint tenants
• insurance policies written in trust
• pension benefits
• statutory nominations
• donatio mortis causa (a gift made by someone expecting to die imminently)
• and many trusts and settlements.

The perils of dying intestate

Despite the many problems that arise from not having written a valid will, it was reported by YouGov in 2016 that nearly two thirds of the British adult population do not have a will.

The Register of Wills or probate court is required to appoint a person to serve as administrator where no executor is made in the will.

This whole process is time-consuming and can be very expensive. It also adds extra worry to the surviving family who are in a state of limbo and often unsure as to how the estate will be distributed.

Whilst those who are married or in a civil partnership are essentially ‘covered’ by the intestacy rules, any lifelong partners of cohabiting couples who are not married, or in partnerships, will often be left unable to inherit anything. Ex-spouses do not receive anything under the intestacy rules of England and Wales.

It goes without saying, that having a will drawn up during your lifetime is not only necessary to ensure that your assets will pass to those who you choose, but will also save a lot of time and money following the death.

It is incredibly important if you seek any control over your assets to get a will drawn up, no matter how distant away its use may seem.

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DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic.