Intestacy Flashcards
What are the three scenarios where the intestacy rules operate?
Where there is no will either because the deceased never made a will at all or all wills
have been successfully revoked.
Where there is a will, but for some reason it is invalid or it is valid but fails to dispose of any of the deceased’s estate.
Where there is a valid will, but it fails to dispose of all the deceased’s estate.
To which property do the intestacy rules apply?
Only to property which is capable of being left by will.
What is the only way to avoid the intestacy rules?
By making a will.
What is the statutory trust imposed by the intestacy rules?
All the property (real and personal) in respect of which
a person dies intestate held on trust by the PRs.
The trust provides that the PRs must pay the funeral, testamentary and administration
expenses (such as legal fees and any tax), and any debts of the deceased with the residuary estate being shared among the family of the deceased under the rules of distribution.
Who is the primary beneficiary under the intestacy rules?
The surviving spouse.
What is the meaning of spouse under the intestacy rules?
The person the deceased was legally married to at the time
of their death.
A former spouse is excluded from the definition, but only from the point when the divorce is
actually finalised and the marriage is legally at an end.
A party to a void marriage is not a spouse.
A party to a voidable marriage is a spouse for the purposes of the intestacy rules until a nullity order is actually made.
How are surviving civil partners treated under the intestacy rules?
In the same way as surviving spouses.
What is the meaning of issue?
The term includes all direct descendants of the deceased and adopted children but not step-children unless adopted.
What is the entitlement where the intestate is survived by both spouse or civil partner and issue?
The spouse or civil partner receives the personal chattels absolutely.
In addition, the spouse or civil partner receives a ‘statutory legacy’ (£322,000) free of tax and costs plus interest from death until payment. The rate of interest payable is the Bank of England rate that had effect at the end of the day on which the intestate died.
The rest of the residuary estate (if any) is divided in half. One half is held on trust for the spouse or civil partner absolutely. The other half is held for the issue on the statutory trusts.
How long must a spouse/civil partner survive an intestate in order to inherit?
28 days.
What rights do spouses/civil partners have over the family home that forms part of the residuary estate passing on intestacy?
If the surviving spouse/ civil partner is living in the property, they can require the PRs to appropriate the family home in full or partial satisfaction of their interest in the estate.
If the property is worth more than the entitlement of the spouse or civil partner, the spouse/ civil partner may still require appropriation provided they pay the difference, ‘equality money’, to the estate.
The surviving spouse/ civil partner must formally elect to exercise this right and notify the PRs in writing within 12 months of the grant of representation.
What happens if a child of an intestate predeceases the intestate?
Any children of the deceased
child (grandchildren of the deceased) who are living at the intestate’s death take their
deceased parent’s share equally between them, contingently upon attaining 18 or earlier
marriage or formation of a civil partnership.
What happens if children or issue survive the intestate but die without attaining a vested interest?
Their interest would normally fail and the estate distributed as if they had never existed.
However, by virtue of an amendment to s.47 AEA 1925, if they die without attaining a
vested interest but leaving issue, they will be treated as having predeceased the intestate.
What happens if the intestate leaves a surviving spouse/civil partner but no issue?
The whole estate, however large, passes to the spouse or civil partner absolutely, provided the civil partner/spouse survives the intestate for 28 days.
What happens if the intestate leaves no surviving spouse/civil partner?
The residuary estate is divided between the intestate’s relatives
in the highest category in the list:
