Intestacy

Question 1

If someone gives their child up for adoption, would the child be part of the biological parent’s estate?

Answer 1

No

Question 2

When and to whom does the 28 day survivorship rule apply to?

Answer 2

The rule only applies in relation to intestacy (not wills). Spouses are treated as predeceased if they die within 28 days of the deceased’s death.

Question 3

Spouse’s entitlement upon intestacy

Answer 3

1. Chattels.
2. £270,000 statutory legacy.
3. 50% of the remaining net succession estate.
4. Right of appropriation to the family home (irrelevant if owned at a JT). Spouse can request that the value of the estate they receive comprises the family home (in satisfaction of their entitlement).

Note – if the estate’s value is less than £270,000 the spouse will receive less but nobody else will benefit.

Question 4

Net succession estate under intestacy (where there is a spouse)

Answer 4

Estate LESS chattels LESS £270,000

Question 5

Statutory order where there are no issue or spouse

Answer 5

1. Parents;
2. Full siblings;
3. Half-siblings;
4. Grandparents;
5. Full uncles/aunts;
6. Half uncles/aunts;
7. Crown.

Note – nieces/nephews don’t appear because they would automatically be included by way of the substitution limb if i.e. full sibling died leaving issue.

Question 6

Does a life interest in a trust pass under the succession estate?

Answer 6

No – it expired upon death and the benefit of the trust vests on the remaiderman.

Question 7

Assets outside the distribution estate

Answer 7

1. Property owned as joint tenants.
2. DMCs
3. Discretionary pension schemes.
4. Statutory nominations of a maximum of £5,000.
5. Life interests in a trust (interest expires upon death).
6. Insurance policies written on trust.
7. Beneficial interests under a trust.

Question 8

When does a remainder interest (future right to receive trust capital) fall under the succession estate?

Answer 8

Once it has vested in possession i.e. the interest to receive the capital is not contingent on the remainderman surviving the joint tenant.

Question 9

Contingency limb

Answer 9

Each beneficiary (issue) must reach the age of 18 or marry earlier in order to inherit. Until then, their interest is contingent.

If a beneficiary is 18 or has already married they will inherit automatically (vested interest).

Question 10

Substitution limb

Answer 10

If an entitled benefit predeceases the intestate, their entitlement can pass to their own issue under the substitution limb.

This would also apply if the beneficiary survives the intestate but dies without obtaining a vested interest i.e. if X dies before 18 or marrying and has a child, the child can inherit under the substitution limb,

Question 11

Spouse’s right to buy the family home

Answer 11

Request must be made in writing to the personal representatives within 12 months of the date of the grant. Before that, the PRs cannot sell the family home without the spouse’s consent.

Note – the court’s permission might be required where the property is part of a larger building owned by the deceased or it is part of a farm/business premises.

Question 12

Personal representatives selling the family home

Answer 12

1. Buyer will buy from the PRs.
2. PRs must sign the contract and execute the purchase deed.
3. The Land Registry will require an official copy of the GOR.

Question 13

Life interest (definition)

Answer 13

A limited interest where the beneficiary (who is called the life tenant) is entitled to the income from the trust property for life, but has no entitlement to the capital of the trust. When the life tenant dies, the capital passes to the remainder (or reversionary) beneficiaries.