What Happens if There Isn’t a Will?

It’s estimated that two-thirds of people die without making a Will. These figures include high-profile figures such as Prince, Jimi Hendrix, Amy Winehouse, Pablo Picasso, and James Dean, to name but a few. Unfortunately, they left more than just their fame behind. Aside from their wealth, they provoked bitter family arguments, avoidable taxes, and numerous costly lawsuits.

But it’s not just the lack of a Will that causes issues; significant events such as marriage can render a previously made Will null and void. Whatever the reason, those who die without leaving a valid Will, die intestate, and the intestacy rules lay down who gets what.

Intestacy Rules

The intestacy rules are clear about who inherits and how much they receive. And there’s a strict order of priority. But, while the Inheritance and Trustee Powers Act 2014 changed the intestacy rules, as they stand, the law doesn’t necessarily reflect the reality (and complexity) of family life today.

Furthermore, the intestacy rules don’t just affect those who die without a Will. If someone makes a Will that is not legally valid, their estate is shared according to these rules and not according to the wishes expressed in their Will.

Order of Priority

The order of entitlement under the intestacy rules is set out under s.46 of the Administration of Estates Act 1925 and depends on the following:

the value of the estate; and
which family members have survived the deceased.

Only married or civil partners and some other close relatives can inherit in England and Wales. However, financial dependents who don’t inherit under the intestacy rules may be able to claim under the Inheritance (Provision for Family and Dependants) Act 1975 (known as the Inheritance Act).

Divorce and remarriage add further complexity. Once a rarity, blended families are now commonplace and failure to make a valid Will – or any Will, can very easily lead to the children of either party being disinherited. See our earlier blog for details of how intestacy may affect you.

Please note that the intestacy rules slightly differ in Scotland, where a surviving spouse or partner can claim ‘prior rights’ to a share of property and assets.

Administering the Estate (Probate) When There Isn’t a Will

When someone dies without a Will, the probate process can be complicated. There’s the matter of who assumes the role of estate administrator (usually a close relative of the person who has died), the added risk of mistakes occurring when the family tree may not be clear, and uncertainty surrounding the identification of eligible beneficiaries.

However, before the legal administration of the estate can begin, the administrator must apply to the court for a formal document known as a Grant of Letters of Administration.

Dealing with estranged or missing beneficiaries

The administrator is legally obliged to investigate if there are any doubts about whether the deceased had any children and where they were when the person died. The first step is usually to consult a genealogist. If this fails to produce results, statutory notices should be placed in the London Gazette and local papers. Anyone believing they may have a claim can then make contact, explaining the circumstances.

The implications of missing beneficiaries are serious. First, the administration of the estate can be severely delayed. Searching for individuals can also be costly and invariably adds another layer of stress for the family, who must accept that their loved one had relatives they hadn’t known about.

Insurance

Estate administrators carry a great deal of responsibility. They can be personally and financially liable for any loss, even if the errors were made in good faith. So, considering the benefits of taking out specialist ‘Missing Beneficiary’ insurance is worthwhile. This cost is a legitimate estate expense. The insurance premium calculation is based on individual circumstances, including steps taken by the administrator to find potential beneficiaries, the value of the estate and the strength of any claim(s).

If insurance isn’t an option, the administrator must ask the court for permission either to distribute funds to those beneficiaries they have identified or pay the court any sums due to a beneficiary who can’t be found. This is rarely straightforward and is often time-consuming and costly, so it is mainly used as a last resort.

Redistributing the Estate by Creating a Notional Will

It’s possible to rearrange the way the estate is automatically distributed when a person dies without a Will, provided:

It’s done within two years of the death.
The people entitled to inherit under Intestacy Rules agree.

Unanimous agreement and time limit aside, people who do not inherit under intestacy rules can benefit theoretically. Subject to these caveats, the amounts distributed can also be changed. If you think the way the estate is shared should be rearranged or redirected, please speak to a specialist lawyer.

Our Advice

Making a Will is rarely a task people are keen to sort out. Confronting family issues, thinking about the inevitable or worrying about the cost make the process seem unappealing.

But with a properly drawn-up Will in place, you gain the peace of mind that your chosen Executor(s) will carry out your wishes, and your family will suffer less stress.

Please contact us for further information, advice from our specialist team, or an idea of the costs involved in making a Will. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.