Chapter 4: Intestacy Flashcards
When do the rules of intestacy apply?
1) The deceased died having made no will, or at least no valid will (a whole intestacy), or
2) The deceased’s will doesn’t dispose of all of their property (a partial intestacy) because the gift of all or part of the residue fails
What is intestacy?
Intestate succession is the statutory method of distributing assets that aren’t disposed of by will
What happens on the death of the intestate re personal representatives?
Their personal representatives hold their estate on trust with power to sell.
They must pay the funeral, testamentary, and administrative expenses, debts, and other liabilities from cash + the proceeds of sale of assets.
Residuary estate is then to be shared among those entitled according to the statutory rules
Where are the rules for distribution of an intestate’s estate set out?
Section 46 Administration of Estates Act 1925.
What is beneficial entitlement dependent upon?
Whether the deceased was survived by a spouse or civil partner.
The spouse must survive the deceased by at least 28 days/
What happens if there is a surviving spouse with no issue?
The spouse is entitled to the entire estate
What happens if there is a surviving spouse and they leave issue?
The spouse receives:
1. Personal chattels absolutely,
2. £322,000, and
3. One-half of the residue absolutely
The deceased’s issue take the other half of the residue once they attain the age of 18
What can the surviving spouse do re the matrimonial home?
Can require the PRs to appropriate the matrimonial home to the spouse in partial or total satisfaction of their interest.
If the property is worth more than the entitlement of the spouse or civil partner, they can still require appropriation provided they pay over the difference (‘equality money’) to the estate
What is the order of entitlement if there is no surviving spouse?
- Issue of the intestate on statutory trusts
- Parents (equally if both alive)
- Brothers and sisters of the whole blood on statutory trusts
- Brothers and sisters of the half blood on statutory trusts
- Grandparents (equally if more than one)
- Uncles and aunts of the whole blood on statutory trusts
- Uncles and aunts of the half blood on statutory trusts, and
- The Crown as ‘bona vacantia’.
How will a class of beneficiaries take the property under intestacy?
A class of beneficiaries take equally between all members of that class if they reach age 18
What does ‘statutory trusts’ mean?
For all classes, other than parents and grandparents, a class member’s issue takes their parent’s share ‘per stirpes’ if the class member has predeceased (provided the issue attain 18).
How do statutory trusts differ with the rule that saves a gift contained in a will from lapsing (if to a testator’s issue)?
Differs in 2 ways.
Statutory trusts:
1. Can apply to any class of intestate beneficiary, except grandparents or parents, and
2. They apply only to intestacy
What happens if a potential beneficiary is living at the intestate’s death but subsequently dies before attaining a vested interest (e.g., attaining 18)?
Their issue (if any) take their deceased parent’s share on statutory trusts.
If the potential beneficiary dies without issue, the estate will be administered as if that beneficiary had never existed.
How are adopted children treated for intestacy?
As the children of their adoptive parents and not their natural parents.
If an adopted individual dies intestate without spouse or issue, their estate will be distributed between the closest relatives in the adoptive family.
An adopted child may also inherit on the intestacy of any member of their adoptive family
How are illegitimate children treated for purposes of intestacy?
Intestacy rules apply regardless of whether or not an individual’s parents were married to each other.
However, if a person dies intestate and their parents were never married, the law presumes that their father hasn’t survived the deceased - unless there is evidence to the contrary or their father was named on their birth certificate
