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New Rules Surrounding Intestacy

The rules of intestacy changed on 26 July 2023 meaning that if you die after this date without a valid Will or no Will at all and are married or in a civil partnership with children, the statutory legacy your spouse/civil partner will received has increased from £270,000 to £322,000. In addition, the spouse or civil partner will receive 50% of the remaining assets, personal effects; the other 50% will fall to the children in equal shares.

This can be a worrying prospect, particularly where there are sole assets of the deceased which could include a property shared by the couple, which could potentially be split between the surviving spouse/civil partner and children. It could result in a liability to inheritance tax and the matrimonial home having to be sold, providing uncertainty for the surviving partner; losing their home and familiarity.

What happens when someone dies intestate?

It may surprise you to discover that it is far from clear at first glance as to who will inherit on an intestacy. The rules of how a person’s estate will be divided, and who will inherit in the event that a person dies without a will, are set out in the Administration of Estates Act 1925. The beneficiaries of the intestate estate vary depending on who survived the deceased as well as how much the estate is worth.

It is important to note that no matter how long a person cohabits with their partner, unless they marry or enter into a civil partnership, the surviving partner will inherit only assets owned jointly with the deceased (if any) and nothing owned in the deceased’s sole name.

For cohabiting couples, assets in the sole name of the deceased will pass to his or her children if there are any, or potentially to their parents, or brothers and sisters. While this may seem unfair, it is purely the result of the deceased choosing not to make a Will and the legislation designed to operate when that happens.

It is also important to note that the legislation defines children only as blood issue or legally adopted children. It does not include stepchildren, or any child who does not have the deceased’s name on their birth certificate. Grandchildren will not inherit anything unless their parent, a child of the deceased, has already died.

What happens to your property when you die intestate?

The asset which can cause the most difficulties when someone dies is their residence. Unless the property was owned as joint tenants between the deceased and the surviving spouse, civil partner or cohabiting partner, it will not automatically be inherited by the survivor.

If the residence is owned as tenants in common, and the deceased is survived by both a spouse and children, the value of the deceased’s half share could be divided between the survivor and the children if it is worth more than £322,000. If it is owned as tenants in common with a cohabitee, the cohabitee will not inherit any of the deceased’s share of the property at all. Undesirable outcomes can include not being able to sell the property until all the children are over 18, or even co-owning a property with potentially estranged members of the deceased’s wider family, with the survivor having to pay rent simply to stay in what was their home with the deceased.

If you or a member of your family dies without making a Will, it could result in an unnecessary liability to inheritance tax or the estate passing to people with whom the deceased had little contact. Leaving those that they cared about left with little or nothing but a costly, lengthy and heart wrenching legal battle to try to claim what they felt they should have inherited.

The only way to guarantee that you have provided for the most important people in your life is to ensure your wishes are set out in a Will. Our team at Morr & Co would be pleased to assist you in protecting your wealth and ensuring is passes to your loved ones. Also, if you find yourself dealing with an intestate estate of a family member, Morr & Co are able to offer advice and assistance to ensure that it is dealt with correctly and efficiently.

If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Private Client team, who will be happy to help.


Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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