Rules of Intestacy

Question 1

What is incapable of passing in the succession estate?

Answer 1

1. Donationes mortis causa
2. Discretionary pension scheme benefits
3. Insurance policy written in trust
4. Statutory nominations = on death, money passes to nominee and released to them on production of death certificate
5. Property held as beneficial joint tenants
   * family home or joint bank accounts
   * express declaration as to beneficial ownership of bank account is conclusive.
6. Other beneficial interests under trusts
   * life interest in life trust
   * remainder interest = although may survive remainderman’s death if vested in interest (i.e not subject to contingency to survive life tenant)

Question 2

Who inherits the entire succession estate if there is no issue?

Answer 2

The spouse or civil partner provided they survive the deceased by 28 days.

Question 3

What will a spouse or cp inherit if there are issue?

Answer 3

1. Personal chattels
2. Statutory legacy of £322,000
3. 1/2 of the residue

Question 4

What are personal chattels according to s.55(1)(x) of the AEA 1925?

Answer 4

Tangible moveable property excluding:
* cash or securities for money
* property used by the intestate at the date of death solely or mainly for business purposes
* property held at date of death solely as an investment

Question 5

What is the issue entitled to on the death of the intestate if spouse / cp survives deceased?

Answer 5

• 1/2 residue on statutory trust

Provided the beneficiary is 18 or over when the intestate dies, they inherit absolutely and immediately. Must survive intestate + be 18 or over to have vested interest.

Question 6

What happens if the issue predeceases the intestate?

Answer 6

If the entitled beneficiary dies before the intestate, their own issue can inherit in their place provided they reach the age of 18 (s.33 WA).

Question 7

Who inherits if the intestate has no spouse / cp or issue?

Answer 7

1. Parents
2. Siblings of whole blood
3. Siblings of half blood
4. Grandparents
5. Uncles and aunts of whole blood
6. Uncles and aunts of half blood
7. the Crown

Question 8

What happens to the marital home?

Answer 8

Spouse / cp does not have an automatic right to a share of the home; however, they can make an election to appropriate the home in satisfaction of their statutory entitlement.

Question 9

How can spouse / cp make an election?

Answer 9

• In writing to PRs within 12 months of grant
• PRs may not sell home without spouse’s consent within this time
• Consent of the court required where home is part of building / farm / business premises.

If entitlement lower than house value, spouse / cp can pay balance. Valued at date of appropriation.