Private Client

Intestacy

Our Approach

Our experienced team can help you and your family to carefully and sensitively navigate these complex rules.

Nobody likes to talk about making a Will. However, if you die without having a legally binding Will in place (and over 65% of Britons do) your assets will be allocated according to the laws of intestacy. Our experienced team can help you and your family to carefully and sensitively navigate these complex rules.

What is intestacy?

Intestacy is what happens under English law when someone dies without a valid Will. That person will have died ‘intestate’. The outcome, in very broad terms is that the intestate’s net assets (their ‘estate’) will be divided between their spouse or civil partner and children and direct descendants. If they leave neither of these, their estate will be divided between other surviving relatives, closest first. The order is set down in law.

The individual benefitting under the intestacy also have the right to apply to administer the estate, the beneficiary or class of beneficiaries taking the top entitlement(s) being first in line to apply for the Grant of Letters of Administration, needed to access most of the deceased’s assets.

We set out the intestacy rules applying in England and Wales in greater detail in our video.

A strong team ethic shines through at Kingsley Napley and there is ready support from across the whole team, whose assistance is always quick, accurate and reassuring.

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The team are especially good at being empathetic towards their clients and taking the time to engage with their wider personal context.

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Our Expertise

Can intestacies arise unexpectedly?

Yes – for example, under English and Welsh law, in contrast to the rules in other jurisdictions (e.g. Scotland) a marriage will automatically revoke all the provisions of previous Wills of the married couple.

Alternatively, the validity of a Will may be challenged, for example due to the testator having insufficient mental capacity, with the result being that the default situation – intestacy – applies instead.

Or maybe a foreign Will only dealing with foreign assets (i.e. not those located in England and Wales) has a worldwide revocation clause, which cancels out the preceding English Will, meaning the English assets pass under the intestacy rules instead.

Or, as a final example (there are more), a testator may leave their entire estate by Will to beneficiaries who all die before them, thus rendering the Will useless.

Can intestacies arise unavoidably?

Yes; to be able to make a Will in England and Wales, the testator has to be an adult (i.e. aged eighteen). A child will always therefore die intestate.

Can an intestacy be varied?

If adult beneficiaries of an intestacy wish to vary their entitlements in favour of others, they can do this tax efficiently for inheritance tax and capital gains tax purposes within two years of the death using a ‘deed of variation’.

Summary

With the benefit of proper lifetime planning, English intestacies can usually be avoided. However, we do not live in a perfect world, so knowledge of the default rules which apply where there is no valid Will is essential.