Intestacy Flashcards
Three situations where intestacy rules apply
- No will or will has been successfully revoked (total intestacy)
- Invalid will or valid will but fails to dispose of ANY of their estate (total)
- Valid will fails to dispose of ALL the estate (partial) (e.g. bcos gift fails or doesn’t deal w residuary)
How do intestacy rules apply to partial intestacy?
Only to the part(s) which have not been disposed of
What is a statutory trust?
Trust that is imposed by intestacy rules over all property when person dies intestate
Who holds statutory trust?
Personal representative(s)
Can you sell property held under a statutory trust if you are the PR?
Yes
What must a PR of a statutory trust pay and when?
What is appropriate of asssets?
Decision by PR to take asset out of the general pool of assets within an estate and transfer the equity in it to a specified beneficiary
(Estate retains legal title but beneficial title belongs to beneficiary)
PR to statutory trust - can they appropriate assets?
Yes - and can count towards beneficiary’s share if have beneficiary’s consent
Primary beneficiary under EA 1925?
Surviving spouse who married to at time of death
(quality of relationship irrelevant. not apply if legally divorced or marriage legally void e.g. underage or one party already married)
When’s marriage voidable?
E.g. under duress or mental disability when entered
Valid (and entitled under intestacy) until court makes a nullity order.
Cohabitee and civil partner entitlement under intestacy rules
CP - as if spouse
Cohabitee - none
Meaning of issue under intestacy rules
All direct descendants
ie children, grandchildren, great grandchildren
Adopted children etc included
Inc those whose parents were not married at time of birth (e.g. grandchild but get married later?)
Step children not unless adopted
How long must spouse survive the intestate?
28 days
If die within that, estate distributed as if they hadn’t
How is residuary estate distributed to surviving spouse?
- Receives personal chattels
- Receives statutory legacy (free of tax and costs plus interest until death until payment)
- Any residuary estate is divided in half. One half held on trust for spouse. Other half held on issue for statutory trusts.
What is a personal chattel for purposes estates?
Tangible moveable property, other than any property that:
1. Consists of money or security for money; or
2. Was used at the death of the intestate solely or mainly for businesses purposes; or
3. Was held at death of intestate solely as an investment
Details re statutory legacy fee
Spouse or civil partner gets £322k their estate if died after 26 July 2023
If residuary estate worth under this, spouse receives it all
If family home held as tenants in common or intestate’s sole name and die intestate, what happens?
Goes under intestacy rules and not pass under survivorship
If family home passes on intestacy, what could you require PRs to do?
Appropriate the family home in full or partial satisfaction of their interest in the estate.
Must be living in the property to do so.
If worth more than their entitlement, may require appropriation provided they pay the difference to the estate
Formality requirements for spouse requiring PR to appropriate family home if died intestate?
Formally elect to exercise the right and notify the PRs in writing within 12 months of the grant of representation
Order of class of beneficiaries to part of estate that does not pass to spouse under a statutory trust
- Children
- Grandchildren(if parent’s died)
- Greatgrandchildren (if parent and grandparent died)
What are children/grandchildren’s interests contingent on under statutory trust?
Reaching 18 or marrying/forming a civil partnership under that age (18 to do so anyway)
(still have that right but it just vests)
If there is a surviving spouse or partner and no issue (i.e. children/grandchildren), what happens?
Whole estate absolutely to the surviving partner absolutely
Entitlement to a residuary estate under intestate rules if there is no surviving spouse or civil partner
- Issue of the statutory trusts, but if none:
- Parents (equal shares);
- Brothers and sisters;
- Half sisters/brothers;
- Grandparents (equal shares);
- Full auntys and uncles
- Half auntys and uncles
- Crown, Duchy of Lancaster or Duke of Cornwall (bona vacantia)
How long for entitlement order to come into force after death of surviving spouse (intestacy)?
28
If entitled to residuary estate and no surviving spouse, how much do you get?
Full amount
What is the bona vacantia rule
If intestate not survived by any relatives under intestacy rules, estate passes to Crown (or Duchy of Lancaster/Cornwall if live in Lancashire or Cornwall)
Is there discretion under bona vacantia?
Yes, could provide for dependents or others who may reasonably expected give something to
(e.g. cohabitant)
How could you apply for provision from an estate if want interest in an intestate’s estate which has gone to crown?
Inheritance and Dependents Act 1975 - apply to court for provision from an estate.
Whose treated as family under intestate rules if adopted
Adoptive family
If you are adopted, which side’s estate do you have right to under statutory trust?
If you had a contingent right to someone in natural family before adopted, retain that
Other than that, it is adopted family
Do intestacy rules apply if your parents are unmarried?
Yes (so you would still be entitled to grandparents estate etc)
If a child dies intestate and their parents aren’t married, who gets the residuary estate?
It is presumed the individual hasn’t been survived by their father or anyone on their father’s side
Doesn’t apply if the dad is named on birth certificate
Can be disproved
What are the benefits of an attestation clause?
States that formalities have been complied with and creates presumption of due execution/that formalities have been complied with.
This shifts burden to whoever seeking to prove the will is invalid.
What happens if no attestation clause and someone is seeking to challenge validity of will? What are the difficulties with this?
Need affidavit from both witnesses explaining what happened when the will was executed.
Might be dead or have moved.
Can a PR appropriate assets in or towards satisfaction of beneficiary’s share under statutory trust?
Yes
If is above amount entitled to, the beneficiary can pay the remainder
If no children under intestacy rules and married, what happens?
Partner gets full amount.
