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Intestacy – can I challenge the rules?

We talk a lot about how to challenge a will, but what happens if someone dies without making a will? In this blog, we look at the intestacy rules, how they work in practice, and your options if you aren’t included.

A number of high profile personalities have passed away recently without leaving a valid will, meaning that the intestacy provisions have received quite a lot of publicity. Rik Mayall, the actor, died suddenly and unexpectedly. Perhaps he was intending to make a will, perhaps not, but the result is that his family will receive his estate in accordance with a set of rules that were updated in 2014. So what are the intestacy rules – and can they be challenged?

Dying ‘intestate’ – what does it mean?

As we’ve already mentioned, dying intestate means that there is no will – or no valid will – which sets out the wishes of the deceased regarding how he (or she) wishes his property to be divided up on his death. In these circumstances, a set of rules, commonly known as ‘the intestacy rules’ will apply, dividing the property up in a set order, depending on which of the deceased’s relatives are still alive. While there may be cases where the intestacy rules apply with no problems, in many other situations, the rigid application of the rules can cause difficulties.

How do the Intestacy rules apply?

When someone dies intestate in England or Wales, the estate of the deceased is divided according to a strict order. There’s a helpful flow chart on the government’s website,which takes you through the steps but essentially, the order is as follows:

  1. Spouse/civil partner.
    • How much you will receive as a spouse/civil partner depends on whether there are any surviving children, and the value of the estate.
    • Where the estate is worth more than £250,000, the spouse received personal possessions plus the first £250,000.
    • If worth less than £250,000, the spouse receives everything.
  2. Children.
    • Depending on the value of the estates and whether the deceased is survived by a spouse/civil partner, children are next in line.
    • Children receive an equal share of anything over £250,000 if there is a spouse, or an equal share of the entire estate if there is no surviving spouse.
    • ‘Children’ includes children from all the deceased’s relationships, and any child that has been legally adopted.
    • Children inherit when they reach the age of 18 or if they marry or enter a civil partnership before the age of 18
  3. Grandchildren/Great-grandchildren.
    • Where a child of the deceased who would have inherited under the intestacy rules is already dead, their children (the deceased’s grandchildren).
    • This flows down to apply to great grandchildren if there is no one else to inherit
  4. Other relatives
    • If no spouse or children survive the deceased, the estate is split between surviving relatives, again according to a predetermined order
    • The order gives primacy to surviving parents, after which siblings (or their children) will inherit, followed by any half siblings, your grandparents, your aunts and uncles and finally any half aunts and uncles.
    • If you die without a will and none of these relatives survive you to receive your property, the estate will pass to the Crown.

What don’t the intestacy rules cover?

So far, so clear, but what happens if the intestacy rules mean you are left with nothing in what seems to be unfair circumstances. For example, a common law partner where the relationship has not been formalised, will receive nothing. There is no provision for step-children (unless you have adopted them), regardless of how long you have looked after them or how much financial support you provide them. You may have known that the deceased wanted to make provision for someone who cared for them, for a good friend, a charity. He or she might even have wanted to make provision for the care of a pet which survived them. None of these intentions will be fulfilled under the intestacy rules.

Can I challenge the intestacy rules?

Although there is no ‘challenge’ to the intestacy rules in the same way that you can challenge a will, someone who feels that the deceased might have left them provision had they made a will can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for financial provision. A claim under the Inheritance Act could be a possibility for a common law spouse who receives nothing in favour of the deceased’s children. It could also help someone who was treated as a child of the deceased (for example a step child) but there was no legal adoption. Finally, someone partly or wholly dependant on the deceased immediately before the death, may bring a claim for financial provision. Strict time limits apply – a claim must be brought within 6 months of the ‘Letters of Administration’ (which allows the distribution of an estate under the intestacy rules) being granted.

Agreeing to vary the Intestacy rules

Another way of inheriting when the intestacy rules don’t cover you is if those people who are entitled to a share of the estate agree to a different division of the estate.  In this case, the beneficiaries of the estate can apply for a deed of variation, or a deed of family arrangement to change the way the estate is divided to include other people – for example step children who weren’t adopted, or a common law partner. Such an application needs to be brought within 2 years of the death.

Need more information?

If you’re worried about your position following the death of a loved one, and no will seems to have been made, taking some legal advice may help you work out what to do. We can talk to you about your options and determine the best way forward given your circumstances. We can usually act on a ‘no win no fee’ basis too, which means the costs of any legal action may not be as high as you thought.