October 2014 saw the biggest changes in probate law’s history come into effect. While the overhaul meant no real difference to those with minimal assets, for the partners of those who died without making a will and who have more assets, it meant significant change. The change gave a surviving spouse the right to a much bigger share of their deceased spouse’s estate than was previously the case.
In the cases where a Will is involved, the deceased’s Executors have the legal power to distribute their estate according to the deceased’s instructions. However, in the case of intestacy, the landscape is vastly more complicated.
Who can Inherit?
Under the rules of Intestacy, only certain individuals can automatically inherit the deceased’s estate. These include:
- Husbands, wives and civil partners
Applying for a Grant of Probate
Without a Will and in cases where the deceased was unmarried, the law dictates that there is no legal representative in place to deal with his or her affairs. However, individuals can apply to become recognised as the deceased’s Personal Representative, by applying to the Probate Registry only if they can show they are entitled to a share of the deceased’s estate. If successful, the individual will be appointed as the Personal Representative.
As part of the process, the applicant must inform HM Revenue & Customs whether Inheritance Tax is owed, which must be paid six months after the deceased’s day of death. In addition, the applicant must also prove that they have an entitlement to becoming a Personal Representative, before a Grant of Probate is made. As a result, this can be a lengthier process than when there is a valid Will appointing executors.
Intestacy for Married Couples
Where the deceased was married but had no children and has died without leaving a Will, the surviving spouse will inherit the entire estate. While this is beneficial to the spouse, it cuts out other relatives the deceased might have wanted to benefit, including parents. Should the deceased have children, the surviving spouse will automatically inherit the first £250,000 of the estate and all the deceased’s personal belongings including his or her cars and furniture, and the surviving spouse will also have the legal right to the use of half of whatever remains for their lifetimes and on their death this will pass to the deceased’s children. The other half goes to the children, although they cannot access it until they are 18 years old.
Intestacy for Unmarried Couples
For an unmarried couple with no children, the outlook is significantly bleaker for the surviving partner. In instances such as these, the surviving party has no entitlement to the deceased’s estate, with it being immediately inherited by blood relatives firstly children if there are nay and then others if the deceased had no children, the first in line being parents and then brothers and sisters and then uncles and aunts.
The term ‘common-law partner’ has no meaning in law. Should the deceased have had a child or children from a previous relationship, the inheritance goes automatically to them – again, leaving the surviving partner with no automatic entitlement to the estate. A surviving partner would have to make a claim for provision from the deceased’s estate by applying to the Courts so a difficult and possibly painful process at a time of loss. It may also put them in dispute with other members of the deceased’s family.
‘‘Common-law’ partnerships are not recognised under probate law, irrespective of how long the couple may have lived together. However, partners in civil partnerships assume the same rights as those who are married, including same sex spouses.
In the event that there are no surviving blood-relatives to inherit, the estate becomes part of a process, known as ‘bona vacantia’. This means that the deceased’s estate is claimed by the Crown. While the Crown can grant shares from the estate to those who can prove they have an entitlement, it is under no obligation to do so once bona vacantia has been declared.
Discussing and deciding what will happen to your money, personal effects and assets isn’t a conversation that many couples tend to enjoy. However, to avoid the unpleasant sides of intestacy, it’s a conversation worth having. The best advice is to seek the services of a professional probate solicitor, who will be able to inform you of the best courses of action available to you.
If you would like to find out more, please contact Andrea Cox on 023 9224 6719 or email firstname.lastname@example.org.
- Will drafting
- Review of existing Wills
- Advice re provision for children, second families, spouses and civil partners, unmarried partners and other family members
- Advice re charitable gifts
- Advice re foreign and business assets
- Advice re Will trusts
- Inheritance Tax advice
- Advice re Trust creation and ongoing management
- Preparation of trust deeds and other trust documentation
- Declarations of Trust
- Termination of trusts
Probate and Administration of Estates
- Advice re the terms of the Will or intestacy rules where there is no Will
- Obtaining values for the various assets and liabilities in the estate, notifying the various institutions and obtaining all necessary estate information
- Obtaining a grant of probate or letters of administration as appropriate
- Dealing with and advice re Inheritance Tax, Capital Gains Tax and Income Tax, liaising with HMRC
- Notifying and liaising with the beneficiaries of the estate
- Preparing a deed of variation or a deed of disclaimer in relation to the estate
- Selling or transferring the various assets due to the beneficiaries
- Dealing with foreign assets and Wills
- Advice re estate disputes and claims against an estate
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