What happens if you don’t make a Will?
If you make a Will, you control what happens to your money and belongings after you die. See this Law Chat article for more information: Why Make A Will.
If you don’t make a Will, a default set of rules will be used to determine what happens on your death. These are called the “Intestacy Rules”.
The Intestacy Rules
You might think that the Rules are logical, simple and nothing unexpected will happen. Unfortunately, that’s not true!
Different things happen depending on the family you leave behind, which we summarise later on in this article. Usually, the Rules do not give you what you want.
Recent changes
Believe it or not, the Rules are the same as when they were first introduced, way back in 1925.
Occasionally, the amounts of money referred to in the Rules changes, which they did on 1 February 2009. It is the first time the figures had changed since 1993, so already you can see how inflexible the Rules are, and how the Government rarely wants to change them!
The Intestacy Rules were made in the 1920s
The new figures (from 1 February) are “£250,000” and “£400,000”. These figures are fixed; they do not vary according to how wealthy you are. Don’t worry if you don’t know what these figures represent. All will be revealed below!
What the Intestacy Rules say:
Here are the Intestacy Rules, bang up-to-date following the changes in February. And remember, the way they work depends on the family you leave behind.
1. For a married person with children:
- Your spouse gets everything up to £250,000 (one of the figures referred to above), and all your personal possessions.
- If there is anything left over, it is split into two halves:
- Half goes to your children at 18 or earlier marriage; and
- Half goes into a “trust”, which means it is protected. While your spouse is still alive, he or she gets any income earned from the trust fund. On your spouse’s death, this half then goes to your children.
If one of your children dies before you their share will go to your grandchildren.
2. For a married person without children:
If there are parents, brothers or sisters of the whole blood, nephew or nieces:
- Your spouse gets everything up to £450,000 (the other figure referred to above) and all your personal possessions;
- Anything left over is split in two, and:
- Half goes to your spouse
- Half goes to your parents (and if no parent is living then it goes to your brothers or sisters or their children).
If there are no parents, brothers or sisters of the whole blood, nephew or nieces, your spouse will take everything.
3. For an unmarried person with children:
Everything goes to your children when they reach 18 or marry at an earlier age, and to any grandchildren if a child dies before you.
4. For an unmarried person with no children:
Everything goes to your parents.
If there are no parents, then to siblings of the whole blood or their children.
If none, then to siblings of the half blood or their chidlren.
If none, then to grandparents.
If none, then to uncles and aunts of the whole blood or their children.
If none, then to uncles and aunts of the half blood or their children.
If none of the above, everything goes to the Duchy of Lancaster or the Duke of Cornwall (i.e. the Government).
Intestacy Rules can leave you confused
Yes, it’s all very complicated!
You can see that the Intestacy Rules are complicated. You will also see that, if you are married, it is by no means guaranteed that your husband or wife will receive all your money and belongings. In fact, it could get messy, with a trust being set up that could tie up a large part of your cash for decades.
Is there a solution?
Yes, it is to make a Will! For ordinary Wills, made with a trusted and friendly firm of solicitors, the process is straightforward and painless.
With a well-drafted Will in place, the Intestacy Rules will not apply.
What if it’s too late?
If someone has died and they did not leave a Will, it may still be possible to ask a solicitor to make what’s called a “Deed of Variation”. This may be able to divert the money to where the family wants it to go, rather than leave it to the Rules of Intestacy. But everyone has to agree, and, even if everyone does agree, a Court order may be necessary if there are young children involved. This is time-consuming and expensive.
Don’t take the risk, get a Will!
If you have any comments or experiences on this topic you wish to share, please do so using the comment form below. For legal advice, please contact Winston Solicitors.
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By Graham Haddon, 20 May 2009 @ 2:04 pm
Nearest and only relatives are 2 first cousins, children of whole blood aunts and uncles(now deceased). One cousin is adopted. Do they both inherit equally under Intestacy Rules.
By Law Chat, 21 May 2009 @ 11:40 am
Graham,
If the nearest relatives are two first cousins and there are no other relatives in that category (i.e. no other first cousins) then they will inherit equally, notwithstanding that one of them is adopted (assuming he/she was legally adopted).
By Paula, 7 January 2010 @ 8:20 am
I am a 2nd cousin my relation died intestate in the Duchy of Lancaster, there are no other living relatives, think I maybe 1st cousin once removed as my mother (who was cousin to the deceased) has also died). Does the deceased estate pass to the Duchy of Lancaster or would I be beneficiary?
By Law Chat, 11 January 2010 @ 5:44 pm
Hi Paula,
The Duchy of Lancaster is a royal duchy (effectively a fund) - it’s not a place. You might be outside the list of beneficiaries under the Intestacy rules (see above) but we suggest getting confirmation from a local solicitor.