The thought of making a Will can be a daunting one. Even though we all want to ensure that our loved ones are protected, should the worst happen, there are many people who do not have a valid Will.
If a person dies without leaving a Will, their estate is classed as ‘intestate’. As opposed to a ‘testate’ estate, where there is a valid Will. There are differences in the intestacy rules depending on whether the deceased lived in Scotland or in England and Wales.
The intestate process can be drawn out, and expensive and may result in unintentional inheritance to people you may not have chosen to benefit from your estate.
There is a common misconception that, when a spouse or civil partner dies without a Will, their whole estate will pass to the surviving partner. This is untrue. If you die without leaving a Will in Scotland, the law decides exactly how your estate will be distributed. This is done through the Rules of Intestacy, as per the Succession (Scotland) Act 1964.
When someone dies in Scotland, Confirmation is required before any assets, such as funds within a bank account, can be released. Confirmation is essentially permission from the Court for the Executor of an estate to distribute the assets.
If a person dies without a Will, and the estate exceeds £36,000, it is necessary to petition the Court to appoint an Executor. The Executor is the person who will be responsible for the distribution of the estate and a petition to the Court is only required if there is no Will.
The Court has a preferred order of potential Executors, based upon the deceased’s surviving family members:
- Spouse or civil partner;
- Those entitled to inherit all or part of the estate;
- The deceased’s next of kin;
- The deceased’s creditors;
- Those entitled to legacies where there is a Will but not executor; and
- The Procurator Fiscal.
The second step is to get something called a Bond of Caution granted. This is a form of protection against the deceased’s estate. A Bond of Caution is not required if the whole estate is payable to the surviving spouse.
Most Bond of Caution providers require the Executor to appoint a solicitor to manage the estate. Unfortunately, this means that there will be legal fees and additional costs, which could have been avoided if the deceased had a valid Will.
The Bond of Caution ensures that the appointed Executor distributes the estate in accordance with the Rules of Intestacy. Additionally, if someone who is not on the approved list attempts to apply for Confirmation, the Bond of Caution will protect the estate.
An important restriction in an intestate estate is that the executor will not be allowed to administer the estate themselves. This means that the solicitor will ingather and distribute all assets in the estate.
Distribution of the Estate
Once the above steps have been followed, Confirmation can be applied for and the estate can be then be administered and distributed.
In Scotland, there are three separate rules of division if a person dies without a Will. These are Prior Rights, Legal Rights, and Free Estate. The order of payment and distribution must be followed.
Prior Rights are the most important and apply if there is a surviving spouse or civil partner. Once any debts, funeral expenses, and Inheritance Tax have been paid by the Executor, Prior Rights are distributed first.
Legal Rights apply if there are surviving children or descendants of a predeceased child.
Free Estate is distributed in accordance with the Succession (Scotland) Act 1964.
The Rules of Succession must be followed and can lead to a complicated distribution of the estate. If the solicitor has any doubt regarding who should inherit, they may need to instruct a third party to investigate a family tree to ensure that the relevant people inherit.
Intestacy England and Wales
In England and Wales, the statutory rules that govern an intestate estate are set out in the Administration of Estates Act 1925, amended in the Inheritance and Trustees Powers Act 2014.
Similarly to the Scottish process, the first step is to appoint someone who will be responsible for the distribution of the estate. Only those who are entitled to benefit from the estate can make the application to be an Administrator.
Up to four people may apply, however it is usually the most ‘entitled’ inheritor who will be appointed as Administrator. This is normally the closest living relative to the deceased, normally the husband, wife or civil partner.
However, it is important to note that even if the deceased was separated from their partner, they would still be considered the most entitled. Alternatively, if the deceased was in a relationship, but not married or in a civil partnership, their partner cannot apply to become the Administrator.
Understandably, this could create an upsetting situation at an extremely difficult time and could easily be avoided with the making of a Will.
Letters of Administration
The Administrator must then complete a form PA1A form before they can manage the deceased’s estate. This is a paper form which must then be sent to HM Courts and Tribunals Service, along with any Inheritance Tax forms if relevant.
Distribution of the Estate
The current intestacy rules state that the order of priority of beneficiaries are:
- Where there is a surviving spouse and no children, then the spouse is entitled to the entire residuary estate;
- Where there is a surviving spouse and children, the spouse is entitled to the first £270,000 plus half of anything remaining. The children get the remaining half, divided equally among them;
- Where there is no surviving spouse or children, then other relatives will be considered in order of classes, beginning with the deceased’s parents.
How Jones Whyte can help
The above is a brief analysis of the intestate procedure in Scotland, England and Wales and what to expect if a loved one passes without a Will. At Jones Whyte we would recommend that everyone has a Will in place. This will prevent any additional expenses incurred by the intestate procedure and help your loved ones navigate through such a difficult time.
For an affordable price, Jones Whyte can draft a Will for you. Contact us now on 0330 175 1234 or complete our online contact form to book an appointment with us.
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