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13 minute read
What happens when someone dies without a will? It’s a question that many don’t consider, but the consequences can significantly impact the loved ones that we leave behind. When there’s no valid will, intestacy laws step in to dictate who inherits the estate. This article will guide you through the complexities of intestacy, helping you understand the legal process and its potential challenges.
Intestacy is when someone passes away without leaving a valid will. Without a will, there are no specific instructions on how their estate should be distributed, therefore intestacy laws will determine who should inherit what.
This means the money, property, and belongings of the person who has passed will be divided among their remaining family members, but they might not be split equally. The laws of intestacy follow strict rules to decide who gets what, based on whether the person was married, had children, or other close family members. However, intestacy laws do not always reflect modern family setups, which can lead to surprises and outcomes the person who has passed may not have wanted.
The rules of intestacy can greatly affect how someone’s estate is shared. Things can get more complicated when there are no immediate family members, as more distant relatives might inherit, or in rare cases, the estate could go to the Crown. Unmarried partners and stepchildren aren’t automatically entitled to anything if there is no valid will in place. To avoid family disagreements and leaving your loved ones without financial support, it is important to write a will.
Having a valid will is the only way to ensure your estate is distributed according to your wishes rather than the laws of intestacy. With a will, you can decide exactly who gets what and include people or causes that matter to you, like friends or charities, that wouldn’t normally inherit under intestacy rules.
A will can also help your family avoid expensive legal problems and reduce their stress. This is especially important for those with non-traditional families, partners you live with but aren’t married to, or those with complicated finances.
When someone passes away, one of the first things to do is find out if they left a will. People often keep their wills in safe places like with their solicitor, in a secure filing cabinet at home, or with a trusted family member. If you’re not sure whether a will exists, you can search probate records online through the government website in England and Wales.
If you think there is a will but can’t find it, the solicitors who were involved in writing it may still have a copy. The sooner you find the will, the sooner you can make sure the person’s wishes are followed and avoid delays in sorting out their estate.
When someone dies with a valid will, their estate will usually go through probate (or confirmation in Scotland). This is a legal process where a court checks that the will is valid and gives the named executor the legal authority to distribute the person’s assets according to the wishes of their will. An executor can refuse this responsibility, so it’s important to choose an executor carefully if you do create a will.
The executor will need to submit the original will, a death certificate, and any other required documents to the court. They will then ensure the will is properly witnessed and hear any concerns such as questions over mental capacity. Once the court is confident that everything is in order, it officially gives the executor the power to carry out the will’s instructions.
Going through probate is an important step to ensure the estate is managed legally and fairly. It also protects the executor and beneficiaries from future disputes over the inheritance.
When someone dies without a will, there is a similar process to probate where the next of kin applies for a “grant of letters of administration.” This legal document gives them the authority to manage and distribute the estate according to the laws of intestacy. Only certain people, like a spouse, children, or close relatives, can apply, and nothing can move forward without the court’s approval.
The person who has been granted the letters of administration becomes the estate’s administrator. Their main task now is to find all the assets of the person who has passed, pay off any debts and distribute the rest according to the intestacy laws. They must also figure out if they owe any inheritance tax by valuing the person’s estate.
If there are disagreements or distant relatives need to be found, this job can get more complicated. Administrators also have to be careful because they could be held personally responsible for any mistakes made during the process.
The probate process for an intestate estate can vary significantly, from several months to years, depending on the size and complexity of the process. You may need to involve legal professionals or probate specialists to help navigate the process which can be costly. These expenses are usually covered by the estate, but they can reduce how much beneficiaries will inherit.
Intestate succession determines how a person’s estate will be distributed. These rules follow a specific order, starting with the closest family members. The value of the estate also affects how it’s divided. While the exact rules can vary between regions, the goal is always to distribute the estate to the closest eligible relatives.
The distribution of the estate depends on the surviving relatives. Here is how it works in England and Wales.
For example: Mary and George are married and George dies without a will. Due to savings, property and shares, George’s estate is worth £100,000. Mary is granted letters of administration, calculates his estate worth and then must pay off any debts. The remaining amount in the estate will then be given to Mary.
For example: Jane and John are married and have two children. Jane dies without a will with an estate worth £400,000 and she has no debts. John will receive the first £322,000. The remaining £78,000 is then split in half, half will go to John and the other half will go to their children.
For example: Sarah and Joe have three children together but are unmarried. Joe dies without a will and leaves a remaining estate of £150,000 after his debts are paid. Sarah will not inherit anything, but their children will receive £50,000 each.
In both Scotland and Northern Ireland, the laws around intestacy differ from those in England and Wales, especially when it comes to surviving spouses or civil partners.
If someone in Northern Ireland dies without a will and the estate is worth less than £250,000, everything goes to the surviving spouse or civil partner. For estates over that amount, the spouse receives personal items, the first £250,000 (£450,000 if there are no children), and a share of the remaining estate. The rest is divided between children or, if there are none, other relatives such as parents or siblings.
Scotland’s intestacy rules focus on prior rights, legal rights, and the free estate. The surviving spouse or civil partner has specific rights to the home (up to £473,000), household contents (up to £29,000), and a cash sum, depending on whether the deceased had children. After these rights are satisfied, both the spouse and children can claim a portion of the remaining assets, with the rest distributed to other relatives if applicable.
According to intestacy, the surviving spouse or civil partner is usually the first in line to inherit anything followed by both biological or legally adopted children.
If the deceased had no children or spouse, the estate may pass to other close relatives, such as parents or siblings. When no immediate family members are alive, the estate may go to more distant relatives, like aunts, uncles, nieces, nephews, or even cousins. In rare cases, when no eligible heirs can be found, the estate becomes bona vacantia, meaning it is passed to the Crown or the government.
In some cases, less common situations can complicate the process of handling an estate. Here are a couple of examples:
Jointly-owned property or assets: If someone owns an asset alongside others, the way this co-ownership is set up will impact how others inherit it. In a “beneficial joint tenancy,” the share owned by the person who has passed will automatically transfer to the other co-owners and doesn’t form part of the estate. In a “tenancy in common,” each owner holds a distinct share of the property, which can be passed on either through a will or intestacy.
Cohabiting partners and unmarried couples: If someone passes away without a will, cohabiting partners or unmarried couples have no automatic rights to inherit their estate. However, they can claim reasonable financial support, provided they lived together for at least two years before the person’s death. In these cases, the court will consider factors like the partner’s financial situation, the nature of their relationship, and any obligations the deceased had towards others. This offers a potential way for unmarried partners to receive a share of the estate, despite the intestacy rules.
In these situations, it’s advisable to seek legal counsel to navigate the complexities of intestacy and ensure that the estate is distributed fairly and in accordance with the law.
Dying without a will can also lead to family conflicts, especially when there are blended families, complex relationships, or valuable assets involved. Unmarried partners, stepchildren, or distant relatives may feel they deserve a share of the estate and want to contest inheritance in court. These disputes can slow down the probate process, increase legal fees, and reduce the estate’s value, causing added stress for grieving families. To avoid these disputes, it’s a good idea to get your affairs in order and plan your estate through a valid will.
Estate planning is an important step to ensure your wishes are respected, but it can also help your loved ones after your death. By creating a valid will, you can avoid the legal complications and emotional strain that often arise when someone dies intestate. You then decide exactly who will inherit your property, money, and possessions, providing peace of mind to all.
Additionally, estate planning helps minimise the time and expense involved in settling your affairs after you pass. This may involve creating a list of assets and their worth, as well as any debts you may have.
Without clear instructions and information, your family could face a lengthy probate process and potentially costly legal disputes. By creating a plan for your estate now, you ensure that your loved ones are protected, and their emotional burden is lessened during an already challenging time.
Knowing what to do when someone dies isn’t something we want to plan for, but it can reduce the burden on your family after you pass. Aside from creating a will, there are other important end-of-life plans you can make to get your affairs in order and take some pressure off of those you leave behind. For example, it’s a good idea to organise your financial and personal documents. This ensures that your family knows where to find important paperwork, such as bank account details, property deeds, insurance policies, and pension information.
Additionally, you may find that establishing a living trust is useful when planning your estate. This allows you to transfer your assets to beneficiaries while avoiding probate. Unlike a will, which only takes effect after death, a living trust can be used during your lifetime, providing flexibility and privacy for managing your assets. However, it’s a good idea to involve a solicitor if you decide to look into this.
It may also be helpful to make a living will. This is a document that specifies the type of care you want to receive if you are unable to communicate, easing the burden of difficult decisions for your family.
Navigating funeral arrangements after the loss of a loved one can feel overwhelming. That’s why considering a prepaid funeral plan as part of your end-of-life preparations can be a thoughtful, practical choice for your loved ones. It allows you to arrange the details and cover the costs of your funeral in advance, sparing your family from making difficult decisions during an already emotional time.
With a prepaid funeral plan, you have the opportunity to plan your funeral exactly the way you want it, ensuring your wishes are honoured. Plus, by securing today’s prices, you protect your family from rising funeral costs in the future.
At Aura, we offer all-inclusive prepaid funeral plans specifically for direct cremations. These plans are affordable and remove the complex formalities of a traditional funeral, giving those you leave behind the flexible option to remember you however they want. Our plans include all the essential services for your funeral, leaving nothing left for your family to pay.
When the time comes, our team of expert funeral arrangers, the Aura Angels, will be on hand to guide your family at every step. Whether it’s handling paperwork, taking care of arrangements, or offering emotional support, we’ll be there to help as much or as little as needed. Get in touch with our team and we’ll be happy to answer any questions you have about funeral plans or anything else about Aura funerals.
