Intestacy Flashcards
When do the intestacy rules apply?
When someone dies without a will (total intestacy)
When all the gifts in a will fail or the will is invalid (total intestacy)
When a gift in a will fails (partial intestacy)
What are the statutory trusts?
When someone dies intestate, a trust is imposed over the deceased’s estate and PRs must pay the funeral, testamentary and administrative expenses (legal fees + taxes) and the deceased’s debts; they can sell assets to raise funds to pay these debts and expenses
The residuary estate remaining is shared under the rules of distribution (s46 Administration of Estates Act 1925)
What is the order of distribution on intestacy under the s46 rules?
Spouse
(a) issue on the ‘statutory trusts’, but if none,
(b) parents, equally if both alive, but if none,
(c) brothers and sisters of the whole blood on the ‘statutory trusts’, but if none,
(d) brothers and sisters of the half blood on the ‘statutory trusts’, but if none,
(e) grandparents, equally if more than one, but if none,
(f) uncles and aunts of the whole blood on the ‘statutory trusts’, but if none,
(g) uncles and aunts of the half blood on the ‘statutory trusts’, but if none,
(h) the Crown, Duchy of Lancaster, or Duke of Cornwall (bona vacantia)
If someone falls within the category, they get the entire entitlement - only look lower if no one present in the category above. The only time its shared is with spouse + issue.
Who can be classed as issue?
Children
Grandchildren
Great-grandchildren
Adopted children (treated as children of adoptive parents)
Child born through assisted reproduction
What rules apply to illegitimate children?
On the intestacy of an individual whose parents were not married to each other, it is presumed that the individual has not been survived by their father or by any person related to them through their father unless the contrary is shown
Presumption avoided if father named on birth certificate
How long must the spouse survive the deceased to inherit under the intestacy rules?
28 days, beginning on day of intestate’s death
When the deceased is survived by a spouse and issue (children/grandchildren etc), what will they receive?
The spouse receives:
- All personal chattels
- The statutory legacy of £322,000 (if estate worth this much)
- Half the remaining balance (the other half passes to the issue).
When the deceased is survived by a spouse but no issue, what will the spouse receive?
The spouse receives the entire estate
How will the intestate’s house pass if there is a surviving spouse?
If in intestate’s sole name or they are tenants in common, the interest forms part of the residuary estate
The surviving partner can, in this case, require the PRs to appropriate the family home in full or partial satisfaction of their interest in the estate (transfer the house to them)
They must be living in the property to exercise this right
How are the ‘statutory trusts’ applied if the issue are entitled after the spouse?
(a) The primary beneficiaries are the children of the intestate who are living at the intestate’s death. Remoter issue are not included, unless a child has died before the intestate.
(b) The interests of the children are contingent upon attaining the age of 18 or marrying or forming a civil partnership under that age. Any child who fulfils the contingency at the intestate’s death takes a vested interest.
(c) If any child of the intestate predeceased 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. Great grandchildren would be included only if their parent had also predeceased the intestate.
(d) If children or issue survive the intestate but die without attaining a vested interest, but leaving issue, they will be treated as having predeceased the intestate so that they can be replaced by their own issue. To be substituted, the issue must be living at the intestate’s death.
How are the ‘statutory trusts’ applied for other categories if applicable?
Beneficiaries other than a spouse, parents and grandparents take on the statutory trusts, meaning that:
- members of a category share equally
- the issue of a deceased relative may take that relative’s share in substitution
- entitlement is contingent upon attaining 18 or marrying/forming a civil partnership earlier
