Residential conveyancing specialist Adele Holliday , at our Malton office, has been promoted to Head of Residential Conveyancing and has become an Associate Director from 1 May 2021. “ I am very proud to say that this marks another new chapter in...
When someone dies without leaving a Will, this is known as dying Intestate. When there is no Will, the deceased person has not nominated anyone to act as Executors and they have missed the opportunity to choose who should receive their assets on their death.
In this situation, the rules of Intestacy state who is entitled to receive the assets of the deceased person. Who the Beneficiaries are will depend on what relatives the deceased person left behind and how valuable their assets were when they died. They also confirm that whoever is entitled to those assets (the Beneficiaries) are also entitled to administer the Estate.
Without a Will, any assets passing to a child of the deceased will be given to them when they reach 18 years of age. If you want to defer their entitlement to say 21 or later you should make a Will.
There is also no provision under the rules of Intestacy for partners or cohabitees. If you are in a long term relationship and you would like to provide for your partner then you must make a Will to avoid the upset that this may cause your loved ones.
Generally, people are free to leave their property in their Will as they think fit. It’s called the freedom of testamentary disposition. There is, however, a safety net, because certain people with close connections to the deceased are able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975.
A claim can arise if somebody’s Will does not make adequate provision for such a person. The same applies if there is an intestacy (when the deceased has not made a Will) if that results in inadequate provision. Generally speaking, a claim has to be made within six months of the Grant of Probate or Letters of Administration although, sometimes, that period is extended.
There are several types of potential beneficiaries. First, there are husbands, wives and civil partners. A claimant in this class can apply for financial provision as would be reasonable in all the circumstances of the case for them to receive. Every case will turn on its own facts but, for this category, a claim can be for much more than merely maintenance. Secondly, there are co-habitees and the law requires the claimant and the deceased to have co-habited for at least two years. They are entitled to reasonable maintenance, something rather less than the first group.
Next come children of the deceased and certain children who are treated as such. They have a right to apply, irrespective of their age, whether they are married/in civil partnership or whether they suffer from any disability. Their claim is restricted to reasonable maintenance which, normally, means that a claim will only succeed if a child is either under age, in education (e.g. over 18 but at university) or disabled. Of course, the deceased may have made very adequate provision during their lifetime or by Will and, if so, the claim will not succeed.
The final category deals with other people who were dependant on the deceased and they have a right to maintenance if they meet certain conditions. This is an important case when there is a wider family.
In these days, family relationships are more varied than they were in the past. The law of intestacy does not make provision for co-habitees and step-children and, therefore, the Inheritance Act is very important. Addressing these issues is always going to be difficult, especially at a distressing time, and it emphasises how important it is, if you are affected, to obtain specialist legal advice.