Intestacy Rules Flashcards
what is full intestacy?
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
what is partial intestacy?
the will is valid but only partially disposes of D’s estate
what effect do the IRs have?
- IRs are mandatory if applicable. They cannot be overridden.
to what property do the IRs apply?
- IRs only apply to property capable of being left in a will (i.e. not future assets)
how do the IRs work?
- IRs impose a statutory trust on D’s estate (similar to an express trust)
if IRs apply, how is the estate administered?
- Someone will need to apply for letters of administration
once GOR is given, how is the estate administered?
- The PR can then administer the estate i.e. paying funeral costs; testamentary costs; administration expenses; debts and then the residuary under the IR
who is not included within the definition of a spouse?
doesn’t inc. divorced spouse, cohabitants and if marriage was void
what effect does a void marriage have?
o invalid from the beginning i.e. one partner was already married or underage (i.e. under 18)
what effect does a voidable marriage have?
valid until it is annulled by order of the court (i.e. lack of capacity)
who is included in the definition of a child?
adopted children are included but stepchildren are not
who is an issue?
direct descendants of D i.e. D’s children, grandchildren etc
explain the position regarding adopted children
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)
explain the interest of children under IR
- Interest of the children are contingent on then turning 18 or before then by marriage or CP.
re: assisted reproduction
who is the mother?
the person who gave birth to the child (excp. there is a court order)
re: assisted reproduction
who is the second parent where a sperm donor is used?
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.
re: assisted reproduction
when are the parents become the legal parents when a surrogate is used?
parent once parental order is obtained
what is the position when D died with a spouse/CP and no children?
- Spouse/CP receives everything
what is the position when D died with a spouse/CP and has children?
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
re: D died with a spouse/CP and has children
explain person chattels
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)
re: D died with a spouse/CP and has children
explain the tax statutory legacy
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
what is a summary of the key points from statutory trusts?
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.
what do the statutory trusts set out?
- STs set out the classes of Bs & the terms on which they will take the property
re: statutory trusts
who is the primary B?
- Children of D are the primary B. Their issue only inherit if they have died.
re: statutory trusts
give an overview as to how to approach this
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.
re: statutory trusts
what is per stirpes distribution?
- each branch of family receive an equal share of the estate, rather than each individual
re: statutory trusts
if B has died, what are the possible outcomes?
o Deceased issue has children their issue will take their share
o Deceased issue doesn’t have children their interest fails
re: statutory trusts
what happens when an interest fails?
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
what is the position regarding the family home?
- 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.
if a TIC wants to appropriate the house in full / part satisfaction of their interest, what are the requirements?
- 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)
what power does the bona vacantia have?
Has discretion to provide for dependants who did not inherit under IR
how is the estate distributed where D dies without a spouse/CP?
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
how is the estate distributed where D dies without a spouse/CP, what effect do the statutory trusts have on distribution?
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.
