Intestacy Rules

Question 1

what is full intestacy?

Answer 1

all of D’s estate passes under IR i.e. due to no will, revoked will, invalid will, valid will that fails to dispose of D’s estate

Question 2

what is partial intestacy?

Answer 2

the will is valid but only partially disposes of D’s estate

Question 2

what effect do the IRs have?

Answer 2

• IRs are mandatory if applicable. They cannot be overridden.

Question 2

to what property do the IRs apply?

Answer 2

• IRs only apply to property capable of being left in a will (i.e. not future assets)

Question 2

how do the IRs work?

Answer 2

• IRs impose a statutory trust on D’s estate (similar to an express trust)

Question 2

if IRs apply, how is the estate administered?

Answer 2

• Someone will need to apply for letters of administration

Question 2

once GOR is given, how is the estate administered?

Answer 2

• The PR can then administer the estate i.e. paying funeral costs; testamentary costs; administration expenses; debts and then the residuary under the IR

Question 2

who is not included within the definition of a spouse?

Answer 2

doesn’t inc. divorced spouse, cohabitants and if marriage was void

Question 3

what effect does a void marriage have?

Answer 3

o invalid from the beginning i.e. one partner was already married or underage (i.e. under 18)

Question 4

what effect does a voidable marriage have?

Answer 4

valid until it is annulled by order of the court (i.e. lack of capacity)

Question 5

who is included in the definition of a child?

Answer 5

adopted children are included but stepchildren are not

Question 6

who is an issue?

Answer 6

direct descendants of D i.e. D’s children, grandchildren etc

Question 7

explain the position regarding adopted children

Answer 7

child of adoptive parents, not natural parents

Exception - if the child had a contingent interest in a deceased natural parent’s estate before they were adopted, this is preserved (applies to parents only, not other natural relatives)

Question 8

explain the interest of children under IR

Answer 8

• Interest of the children are contingent on then turning 18 or before then by marriage or CP.

Question 8

re: assisted reproduction

who is the mother?

Answer 8

the person who gave birth to the child (excp. there is a court order)

Question 9

re: assisted reproduction

who is the second parent where a sperm donor is used?

Answer 9

if they are married/CP at the time of treatment and the husband/wife consents, they will be the legal father/second female parent

if not married, the mother can give notice someone else (i.e. a cohabitant) is to be the legal father/second female parent.

Question 10

re: assisted reproduction

when are the parents become the legal parents when a surrogate is used?

Answer 10

parent once parental order is obtained

Question 11

what is the position when D died with a spouse/CP and no children?

Answer 11

• Spouse/CP receives everything

Question 12

what is the position when D died with a spouse/CP and has children?

Answer 12

Spouse/CP will receive (if they survive D by 28 days):
o Personal chattels
o Tax statutory legacy (SL) plus interest from the date of date
o Half of anything that remains (i.e. the residuary)

Issue on statutory trust (NB: no requirement to survive 28 days):
o The other half of the residuary

Question 13

re: D died with a spouse/CP and has children

explain person chattels

Answer 13

i.e. tangible moveable property not including:
 Money and securities for money (i.e. a promise to pay money)
 Property at death used solely or mainly for business
 Property at death held solely for investment (i.e. had no personal use)

Question 13

re: D died with a spouse/CP and has children

explain the tax statutory legacy

Answer 13

Tax statutory legacy (SL) plus interest from the date of date:
 SL DOD before 26 July 2023  £270k
 SL DOD after 26 July 2023  £322k

Question 13

what is a summary of the key points from statutory trusts?

Answer 13

o A child’s interest is contingent upon turning 18 or earlier by marriage/CP
o If a person due to inherit (whether contingent or vested interest) passes away, their share can be left to their living issue
o Each branch of family takes equal shares (not each individual)
* Any issue must be living at the time of D’s death to inherit.

Question 14

what do the statutory trusts set out?

Answer 14

• STs set out the classes of Bs & the terms on which they will take the property

Question 15

re: statutory trusts

who is the primary B?

Answer 15

• Children of D are the primary B. Their issue only inherit if they have died.

Question 16

re: statutory trusts

give an overview as to how to approach this

Answer 16

Stage 1  residuary distributed between children in equal shares.

Stage 2  have any of the children died?
o Y = their share is passed onto their child(ren) (i.e. D’s grandchild)
 If D’s grandchild(ren) is also dead, the interest can pass onto their issue (i.e. D’s great grandchild).
 If there is no great grandchild, D’s interest fails.

o N = interest fails.

Question 17

re: statutory trusts

what is per stirpes distribution?

Answer 17

• each branch of family receive an equal share of the estate, rather than each individual

Question 18

re: statutory trusts

if B has died, what are the possible outcomes?

Answer 18

o Deceased issue has children  their issue will take their share
o Deceased issue doesn’t have children  their interest fails

Question 19

re: statutory trusts

what happens when an interest fails?

Answer 19

When an interest fails, it is first distributed amongst that branch of the family.

If someone in the branch has died, but their children are alive, their children will take their deceased parent’s share.

If everyone in that branch has died and there is not issue, the interest will be distributed to the branch

Question 20

what is the position regarding the family home?

Answer 20

• If the home is held as JTs, survivorship applies (so not subject to IRs)
• If the home is held as TIC, the spouse/CP can require PRs to appropriate the house to them in full or partial satisfaction on their interest.

Question 21

if a TIC wants to appropriate the house in full / part satisfaction of their interest, what are the requirements?

Answer 21

• Spouse/CP must be living in the home
• Spouse/CP must notify the PRs in writing that they will be exercising this right within 12 months of GOP
• If the property exceeds their entitlement, the spouse/CP will need to pay equality money to the estate (i.e. the difference)

Question 21

what power does the bona vacantia have?

Answer 21

Has discretion to provide for dependants who did not inherit under IR

Question 21

how is the estate distributed where D dies without a spouse/CP?

Answer 21

NB: this will apply if they had a spouse/CP, but they passed away within 28 days of D

The entitled class will share all of the property equally:

a. Issue*
b. Parents
c. Full siblings*
d. Half siblings (not stepsiblings)*
e. Grandparents
f. Full aunts and uncles*
g. Half aunts and uncles*
h. Bona vacantia

• = statutory trusts apply

Question 21

how is the estate distributed where D dies without a spouse/CP, what effect do the statutory trusts have on distribution?

Answer 21

the statutory trusts apply to:
- issue
- full siblings
- half-siblings
- full aunts and uncles
- half aunts and uncles

in effect, this means:

D’s nieces/nephews will inherit if both of their parents (i.e. D’s sibling) are deceased.

D’s cousins will inherit if both of their parents (i.e. D’s aunt/uncle) are deceased.