Intestacy

Question 1

Three situations where intestacy rules apply

Answer 1

1. No will or will has been successfully revoked (total intestacy)
2. Invalid will or valid will but fails to dispose of ANY of their estate (total)
3. Valid will fails to dispose of ALL the estate (partial) (e.g. bcos gift fails or doesn’t deal w residuary)

Question 2

How do intestacy rules apply to partial intestacy?

Answer 2

Only to the part(s) which have not been disposed of

Question 3

What is a statutory trust?

Answer 3

Trust that is imposed by intestacy rules over all property when person dies intestate

Question 4

Who holds statutory trust?

Answer 4

Personal representative(s)

Question 5

Can you sell property held under a statutory trust if you are the PR?

Answer 5

Yes

Question 6

What must a PR of a statutory trust pay and when?

Question 7

What is appropriate of asssets?

Answer 7

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)

Question 8

PR to statutory trust - can they appropriate assets?

Answer 8

Yes - and can count towards beneficiary’s share if have beneficiary’s consent

Question 9

Primary beneficiary under EA 1925?

Answer 9

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)

Question 10

When’s marriage voidable?

Answer 10

E.g. under duress or mental disability when entered

Valid (and entitled under intestacy) until court makes a nullity order.

Question 11

Cohabitee and civil partner entitlement under intestacy rules

Answer 11

CP - as if spouse
Cohabitee - none

Question 12

Meaning of issue under intestacy rules

Answer 12

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

Question 13

How long must spouse survive the intestate?

Answer 13

28 days

If die within that, estate distributed as if they hadn’t

Question 14

How is residuary estate distributed to surviving spouse?

Answer 14

1. Receives personal chattels
2. Receives statutory legacy (free of tax and costs plus interest until death until payment)
3. Any residuary estate is divided in half. One half held on trust for spouse. Other half held on issue for statutory trusts.

Question 15

What is a personal chattel for purposes estates?

Answer 15

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

Question 16

Details re statutory legacy fee

Answer 16

Spouse or civil partner gets £322k their estate if died after 26 July 2023

If residuary estate worth under this, spouse receives it all

Question 17

If family home held as tenants in common or intestate’s sole name and die intestate, what happens?

Answer 17

Goes under intestacy rules and not pass under survivorship

Question 18

If family home passes on intestacy, what could you require PRs to do?

Answer 18

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

Question 19

Formality requirements for spouse requiring PR to appropriate family home if died intestate?

Answer 19

Formally elect to exercise the right and notify the PRs in writing within 12 months of the grant of representation

Question 20

Order of class of beneficiaries to part of estate that does not pass to spouse under a statutory trust

Answer 20

1. Children
2. Grandchildren(if parent’s died)
3. Greatgrandchildren (if parent and grandparent died)

Question 21

What are children/grandchildren’s interests contingent on under statutory trust?

Answer 21

Reaching 18 or marrying/forming a civil partnership under that age (18 to do so anyway)

(still have that right but it just vests)

Question 22

If there is a surviving spouse or partner and no issue (i.e. children/grandchildren), what happens?

Answer 22

Whole estate absolutely to the surviving partner absolutely

Question 23

Entitlement to a residuary estate under intestate rules if there is no surviving spouse or civil partner

Answer 23

1. Issue of the statutory trusts, but if none:
2. Parents (equal shares);
3. Brothers and sisters;
4. Half sisters/brothers;
5. Grandparents (equal shares);
6. Full auntys and uncles
7. Half auntys and uncles
8. Crown, Duchy of Lancaster or Duke of Cornwall (bona vacantia)

Question 24

How long for entitlement order to come into force after death of surviving spouse (intestacy)?

Answer 24

28

Question 25

If entitled to residuary estate and no surviving spouse, how much do you get?

Answer 25

Full amount

Question 26

What is the bona vacantia rule

Answer 26

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)

Question 27

Is there discretion under bona vacantia?

Answer 27

Yes, could provide for dependents or others who may reasonably expected give something to

(e.g. cohabitant)

Question 28

How could you apply for provision from an estate if want interest in an intestate’s estate which has gone to crown?

Answer 28

Inheritance and Dependents Act 1975 - apply to court for provision from an estate.

Question 29

Whose treated as family under intestate rules if adopted

Answer 29

Adoptive family

Question 30

If you are adopted, which side’s estate do you have right to under statutory trust?

Answer 30

If you had a contingent right to someone in natural family before adopted, retain that

Other than that, it is adopted family

Question 31

Do intestacy rules apply if your parents are unmarried?

Answer 31

Yes (so you would still be entitled to grandparents estate etc)

Question 32

If a child dies intestate and their parents aren’t married, who gets the residuary estate?

Answer 32

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

Question 33

What are the benefits of an attestation clause?

Answer 33

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.

Question 34

What happens if no attestation clause and someone is seeking to challenge validity of will? What are the difficulties with this?

Answer 34

Need affidavit from both witnesses explaining what happened when the will was executed.

Might be dead or have moved.

Question 35

Can a PR appropriate assets in or towards satisfaction of beneficiary’s share under statutory trust?

Answer 35

Yes

If is above amount entitled to, the beneficiary can pay the remainder

Question 36

If no children under intestacy rules and married, what happens?

Answer 36

Partner gets full amount.