COVID-19 Q&A | Sintons | Wills, Trusts & Estates

During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.

Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.

Q – I do not have a will but I have one relative to leave things to, my brother, so I am presuming my estate would pass to him anyway. Is this the case?

A – There is a common misconception that, if a person dies without a will, their estate will pass to their “next of kin”. However, this is not a legal term. In fact, where a person dies without a will, they are deemed to die “intestate”. Their estate will be divided in accordance with a set of strict rules which are set out under the Administration of Estates Act 1925.

The rules provide a list of individuals who may benefit from an intestate estate. The highest living relative in the following list will take priority:

  1. Spouse or civil partner;
  2. Children/grandchildren/great grandchildren;
  3. Parents;
  4. Siblings;
  5. Half siblings;
  6. Grandparents;
  7. Uncles and aunts;
  8. Half uncles and aunts.

So, if the deceased was married or in a civil partnership at the date of their death, their spouse or civil partner is first in priority to receive the estate. However, there is often a mistaken belief that a spouse or civil partner will automatically inherit the whole estate from the deceased. This is true for estates worth less than £270,000. However, where the estate is worth more than this, the surviving spouse or civil partner will receive the first £270,000 and the deceased’s personal chattels. They will also receive half of the remainder of the estate, with the other half being divided equally between the deceased’s children. This is a rule which catches many families out.

If a relative dies before the deceased but leaves surviving children, those issue will take their deceased parent’s share of the estate. For example, if the deceased’s sister has predeceased them, any children she has living at the deceased’s death (that is, nieces and nephews of the deceased) would instead inherit the estate in equal shares.

The intestacy rules can cause an undesirable distribution of the estate, particularly where families have fallen out. This is because all living beneficiaries within a category are entitled to a share of the estate. So, if the deceased is survived by a brother and sister, even though they may have been estranged for many years, they will both be entitled to half of the estate.

As the intestacy rules date back to 1925 they do not necessarily reflect modern society. There is no provision for unmarried partners, nor for step-children. It can cause a great deal of upset where a person dies without a will and the rules do not distribute the estate the way in which the family expect it would be. It can also lead to lengthy and costly disputes between family members as to who should receive the estate.

Even if you believe that the intestacy rules reflect your wishes anyway, it is still important to make a will. It can make the administration of the estate much easier, and will ensure that there can be no doubt as to who should benefit from your estate.

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