It is important to make a will because: if you die without a will, there are certain rules which dictate how the money, property or possessions should be allocated. This may not be the way that you would have wished your money and possessions to be distributed.
In fact, a will may be the most important document that you ever write, because it allows you to select the persons who will receive what you own when you die. If you don't have one in place, you cannot select the recipients of your property and the state you reside in will determine how your property is divided.
What if There Is No Will
When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy. A person who dies without leaving a will is called an intestate person.
Only married or civil partners and some other close relatives can inherit under the rules of intestacy.
If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will.
For more information about what is a valid will, see Wills.
Married partners and civil partners
Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy.
Partners who separated informally can still inherit under the rules of intestacy. Cohabiting partners (sometimes wrongly called 'common-law' partners) who were neither married nor in a civil partnership can't inherit under the rules of intestacy.
If there are surviving children, grandchildren or great-grandchildren of the
person who died and the estate is valued at more than £270,000, the partner will inherit:
all the personal property and belongings of the person who has died, and
the first £270,000 of the estate, and
half of the remaining estate.
If there are no surviving children, grandchildren or great-grandchildren, the partner will inherit:
all the personal property and belongings of the person who has died and
the whole of the estate with interest from the date of death.
Couples may jointly own their home. There are two different ways of jointly owning a home. These are beneficial joint tenancies and tenancies in common.
If the partners were beneficial joint tenants at the time of the death, when the first partner dies, the surviving partner will automatically inherit the other partner's share of the property. However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person's share.
Couples may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit the whole of the money.
Property and money that the surviving partner inherits does not count as part of the estate of the person who has died when it is being valued for the intestacy rules.
Children of the intestate person will inherit if there is no surviving married or civil partner. If there is a surviving partner, they will inherit only if the estate is worth more than a certain amount.
Children - if there is no surviving married or civil partner
If there is no surviving partner, the children of a person who has died without leaving a will inherit the whole estate. This applies however much the estate is worth. If there are two or more children, the estate will be divided equally between them.
Children - if there is a surviving partner
If there is a surviving partner, a child only inherits from the estate if the estate is valued at over £270,000. If there are two or more children, the children will inherit in equal shares:
• one half of the value of the estate above £270,000.
All the children of the parent who has died intestate inherit equally from the estate. This also applies where a parent has children from different relationships.
For example: Alan and Grace were married and have two children, Tim and Annie. Alan and Grace get divorced. Alan then has a child, Mark, with his new partner Beata. Alan and Beata do not marry. Alan dies. Grace does not inherit under the intestacy rules because she is divorced from Alan and neither does Beata because she has not married Alan. Tim, Annie and Mark inherit all of Alan's estate in equal shares.
Adopted children (including step-children who have been adopted by their step-parent) have rights to inherit under the rules of intestacy. But otherwise you have to be a biological child to inherit.
Children do not receive their inheritance immediately. They receive it when they:
• reach the age of 18, or
• marry or form a civil partnership under this age.
Until then, trustees manage the inheritance on their behalf.
Grandchildren and great grandchildren
A grandchild or great grandchild cannot inherit from the estate of an intestate person unless either:
their parent or grandparent has died before the intestate person, or
their parent is alive when the intestate person dies but dies before reaching the age of 18 without having married or formed a civil partnership
In these circumstances, the grandchildren and great grandchildren will inherit equal shares of the share to which their parent or grandparent would have been entitled.
Other close relatives
Other relatives may have a right to inherit if the person who died intestate had no surviving married partner or civil partner, children, grandchildren, great grand-children, parents, brothers, sisters, nephews or nieces. The order of priority amongst other relatives is as follows:-
uncles and aunts. A cousin can inherit instead if the uncle or aunt who would have inherited died before the intestate person
half-uncles and half-aunts. A half-cousin can inherit instead if the half-uncle or half-aunt who would have inherited died before the intestate person.
Who cannot inherit
The following people have no right to inherit where someone dies without leaving a will:
unmarried partners (sometimes wrongly called 'common-law' partners)
lesbian or gay partners not in a civil partnership
relations by marriage
However, even if you can't inherit under the rules of intestacy, you might be able to apply to court for financial provision from the estate.
If there are no surviving relatives
If there are no surviving relatives who can inherit under the rules of intestacy, the estate passes to the Crown. This is known as bona vacantia. The Treasury Solicitor is then responsible for dealing with the estate. The Crown can make grants from the estate but does not have to agree to them.
We Offer Friendly and Professional Advice for Wills, Trusts and Probate. We Have Breadth & Depth of Expertise.
Lasting Power of Attorney (LPA)
You choose who makes decisions for you. You can set out conditions and guidance as to how they should act. We recommend you make a best interest statement as to the medical treatment you do and don’t want.
A diagnosis of dementia doesn’t prevent you from making an LPA. Everyone’s dementia is different and you may still be deemed to have mental capacity. Each case is different.
Any decision made by an attorney must be in your best interests. This can be particularly relevant when it comes to medical treatment or social care. We can assist you to draft a written statement in which you can record your wishes as to the treatment and or care you would and wouldn’t want to receive
What happens If There is No LPA
Ideally, we need to see you twice, but if we discuss matters in advance, a single meeting can suffice.
We recommend that you have two attorneys plus a spouse/partner if you have one.
Its prudent to have at least one attorney who is some years younger than you. If you own a property with one or more people the situation can be a little more complicated.
Legal issues to consider
Lasting Powers of Attorney are important documents. If you lose mental capacity they can be invaluable in ensuring your finances are properly managed and that you enjoy a good quality of life. To ensure they are valid and as useful as possible you should take legal advice. There are a number of issues to think about and it’s important you get them right. These include:
The implications of the Mental Capacity Act on Lasting Powers of Attorney
Understanding what mental capacity means in practice
Knowing how many attorneys to appoint
Making sure you can sell your home if needed without a court order
Understanding the difference between joint and several appointment of attorneys
Protecting your quality of life
Avoiding disputes over whether you have the mental capacity to make a Lasting Power of Attorney
While you can create a valid LPA without registration, your Attorneys will not be able to act on your behalf until it has been registered with the Office of the Public Guardian (‘OPG’). Having created an LPA is a useful first step. You can then look to have it registered when your attorneys need to use it. You should appreciate however that registration can take in excess of two months and in such circumstances the LPA will not be available to use if a sudden emergency arises.
To arrange a free consultation please complete our enquiry form or telephone 07930 391368 to a meeting in person or over Zoom.
Probate & Administration of An Estate
If the death was on or after 1 January 2022 and meets the criteria to make it an excepted estate, you will not need to submit an Inheritance Tax (IHT) form. Otherwise, an IHT form will also be required. Click here to read our blog on IHT reporting for excepted estates
All of the details, including the death certificate, must be sent to the Probate Registry
With an original Will and death certificate, as well as the full value of the estate, you can apply for probate online. However, documents must still be sent by post following the online submission
Applications usually take between 6-8 weeks once submitted. However, due to COVID-19 there have been ongoing delays to the process. It is currently recommended to make online applications rather than paper where possible
When is probate required?
Probate is usually required if the deceased owned any property in their sole name or if a financial institution (e.g. a bank or building society) needs to see the Grant of Probate in order to release the funds. Individual institutions will have differing thresholds for probate.
Probate is not likely to be needed if the assets were held jointly as they will automatically pass to the surviving spouse or civil partner.
A common misconception is that probate is not required if there is a Will. However, if there are solely owned assets or the estate value is over the financial institution’s threshold, a Grant of Probate is still necessary whether the individual passed away with a Will or intestate.
There is a set government fee of £273 for obtaining the Grant of Probate. However, if the estate value is less than £5,000, there is no fee payable.
What is the Administration of An Estate
Estate administration can often be extremely complex and time-consuming, adding stress at an already difficult time for the Executor or Administrator. However, they do not have to take full responsibility for all tasks. They can choose to appoint a professional to handle the estate on their behalf.
Kings Court Trust is happy to help with the administration of all estates. We are award-winning estate administration specialists who know how to handle everything from intestacy to foreign shares. Our unique service allows you to leave the challenging tasks to us and handle everything on your behalf, giving peace of mind during bereavement.
How long does it take to administer an estate?
As each estate is unique, it is almost impossible to predict exactly how long the process will take without knowing more specific details about the estate. Estate administration is a complicated legal process; therefore, it should be expected that it will take months rather than weeks.
Kings Court Trust offers one of the most efficient services available and aims to distribute inheritance to beneficiaries as soon as possible.
What is the difference between probate and estate administration?
To sum up the difference between probate and estate administration: probate is just one part of the wider estate administration process. Probate provides you with the legal right to move forward with estate administration. Although probate is not always required, estate administration must always be carried out, regardless of the value or complexity of the estate.
To arrange a free consultation please either complete an enquiry form or telephone 07930 391368.
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